Bendel Construction Co. Ltd v. Anglocan Development Co. (Nig.) Ltd (1972)
LawGlobal-Hub Lead Judgment Report
FATAYI-WILLIAMS, J.S.C.
In the civil summons, headed “Undefended List” and issued from the High Court of Lagos State on 20th June, 1970, the plaintiffs claimed:
“against the defendants the sum of 2,043,11s (two thousand and forty-three pounds eleven shillings) being the purchase price of goods sold and delivered by the plaintiffs to the defendants at the defendants’ request at Lagos during December 1969. The defendants have failed to pay in spite of repeated demands.”
When the case came up before Caxton-Martins J., on 13th July, 1970, learned counsel for the plaintiffs asked the court for judgment on the ground that the defendants had not filed any notice of their intention to defend the action. To this request, learned counsel for the defendants replied as follows:
“My instructions from my client are that they were served on Saturday, 11th July, 1970. We still have time to file notice of an intention to defend.” Whereupon, the learned trial judge adjourned the case to 28th September, 1970 “for proof of service.”
Presumably in order to prove service of the writ as required by the learned trial judge, the solicitor for the plaintiffs applied to the High Court of Lagos for a subpoena to be served on the bailiff of the said court:
“To produce affidavit of service of the writ of summons taken out under ‘Undefended List’ in the above case, on the defendants herein, and to give evidence of service on behalf of the plaintiffs.”
The application in the court file showed that at the time when it was filed on 22nd July, 1970, the italicised portion had been deleted thus indicating that the bailiff was only required to give evidence of service of the writ of summons on the defendants.
Notwithstanding the earlier adjournment by the court to 28th September, 1970, for proof of service by them, the plaintiffs, on 20th July, 1970, applied for an order for accelerated hearing not of the proof of service of the writ, but of the case. When this application came up for determination before the same judge on 27th July, 1970, learned counsel for the plaintiffs informed the court that the defendants had still not filed a notice of their intention to defend the action. Learned counsel for the defendants, on the other hand, objected to the motion for accelerated hearing on the ground that the plaintiffs had still not proved service of the writ on them as ordered by the court. The court then adjourned the motion to 3rd September 1970 “for hearing”. On 3rd September, 1970, with both parties and their counsel being present, the motion was further adjourned to 5th October, 1970, for mention.
Meanwhile, the defendants’ solicitors, on 3rd September, 1970, (that is, 25 days before the date of adjournment for proof of service of the writ), filed a notice of their intention to defend the suit as required by order 3, rule 11 of the Supreme Court (Civil Procedure) Rules-(Cap. 211 of the Laws of Nigeria, 1948, still applicable in the High Court of Lagos)-hereinafter referred to as the Rules. This notice was supported by an affidavit giving particulars of the defendants’ defence and stating that they had a substantial defence to the action.
When the substative claim came up again on 28th September, 1970, this time before Adedipe J., who did not appear to be aware of the order of Caxton- Martins J. requiring the plaintiffs to prove service of the writ on the defendants, the court further adjourned it to 5th October, 1970, (the date to which the application for accelerated hearing had been earlier adjourned) for mention.
The notes of the learned trial judge on 5th October, 1970 read:
“Balogun, Adewale with him for the plaintiff company. Adejare for the defendant company.
Balogun: The defendant was served on 27th June, 1970. There is no leave granted by the court for filing notice of intention to defend out of time. I am asking for judgment.
Adejare: We have filed notice of intention to defend. We intend to bring a motion.
Court: Judgment for the plaintiff in the sum of 32,04311s with 60 pounds costs.”
It is against this judgment that the defendants have now appealed to this Court. The main complaint of Chief Williams who appeared for the defendants/appellants was that the matter was no longer on the undefended list, and that, in any case, there was no determination of the dispute between the parties as to the date when the writ of summons was served on the defendants/appellants. He further submitted that since the substantive action was adjourned on 28th September, 1970 to 5th October, 1970 “for mention”, the learned trial judge should not have entertained the application of the plaintiffs/respondents and given judgment for them in default of notice of intention to defend the action. He referred to the case of Ojikutu v. Odeh 14 W.A.C.A. p. 640 where on appeal, a defendant was allowed to put in his defence in the High Court although a date had been fixed for hearing and his notice of intention to defend was filed two days before that hearing date instead of five days before as required by Order 3, rule 11 of the Rules; he then pointed out that because the case here was adjourned to 5th October, 1970, for mention and not for hearing, the defendants/appellants were in a much stronger position than the defendant in the Ojikutu case.
For the plaintiffs/respondents, Mr Balogun conceded that a notice of intention together with an affidavit disclosing a prima facie defence to the action was filed but submitted that the notice was filed out of time. That being the case, learned counsel further submitted, the defendants/ appellants had failed to comply with the provisions of Order 3, rule 12 of the Rules and the plaintiffs/respondents were therefore entitled to judgment as given by the learned trial judge. He, however, further conceded that the plaintiffs/respondents caused a subpoena to be issued on the bailiff on 22nd July,1970, to come and testify in proof of service of the writ. Before considering the arguments adduced before us, it is necessary to set out the provisions of Order 3, rules 11 to 13 of the said Rules. They read:
“11. If the party served with the writ of summons and affidavit delivers to the registrar, not less than five days before the day fixed for hearing, a notice in writing that he intends to defend the suit, together with an affidavit setting out the grounds of his defence, then and in such case the suit shall be entered in the general list for hearing.
- Where any defendant neglects to deliver the notice of defence and affidavit, as described in the last preceding rule, within the time fixed by the said rule, the court may at any time before judgment is entered, on an affidavit disclosing a defence on the merits and satisfactorily explaining his neglect, let in the defendant to defend upon such terms as the court may think just.
- Where any defendant neglects to deliver the notice of defence and affidavit, prescribed by rule 11, within the time fixed by the said rule, and is not let in to defend in accordance with the provisions of rule 12, then and in such case, the suit shall be heard as an undefended suit, and judgment given thereon, without calling upon the plaintiff to summon witnesses before the court to prove his case formally.”
In the instant case, it seems to us that once the case was adjourned on 13th July, 1970 to 28th September, 1970 for proof of service of the writer by the plaintiffs/respondents, the earlier date could not have been the date “fixed for hearing” referred to in rule 11. The plaintiffs/ respondents, by causing a subpoena to be issued on the bailiff on 22nd July, 1970, to testify as to the service of the writ, were themselves aware of that situation.
By further adjourning the case when it came up on 28th September, 1970 to 5th October, 1970 “for mention”, the court was also not unmindful of the situation created by the dispute over the date of service of the writ. To contend, as learned counsel for the plaintiffs/ respondents had done, that a date had been fixed for hearing and that the defence was filed less than five days before that date, is being less than fair to the defendants/ appellants having regard to the particular circumstances of the case. This confusion would probably not have arisen if it was the same judge before whom the case first came on 13th July, 1970, who heard the case on 5th October, 1970, although it must be pointed out that it was the latter judge who adjourned the case to that date (5th October, 1970) “for mention.”
In our view, to proceed to determine the claim and give judgment for the plaintiffs/respondents on a date when the admitted dispute over the service of the writ on the defendants/appellants had not been resolved was completely unjustified by the provisions of the Rules. Seeing that a notice of intention to defend together with an affidavit showing a defence to the action had been filed and realising that there was this dispute over service of the writ, the learned trial judge should have resolved the dispute first before proceeding to hear the case on the merits. The amount being claimed is 32,04311s which is quite a substantial sum. In this connection, the following observation of Foster Sutton P., in Ojikutu v. Odeh 14 W.A.C.A. 640 at p. 641, to which Chief Williams had earlier referred us is particularly apposite:
“I entirely agree with the learned trial judge as to the necessity for observing strictly the provisions of the rules, but in this case the neglect to do so was explained to the court by the solicitor appearing on behalf of the defendant, and I am of the opinion that, in the circumstances here, the trial judge ought to have given the defendant permission to file an affidavit explaining the neglect.
The principles upon which the court ought to act in circumstances such as arose in this case are clearly set out in the judgment of Thesiger L.J. in the case of Collins v. Vestry of Paddington (1880) 5 Q.B.D. at pp. 380 and 381 where he said:
‘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.”’
As Chief Williams has rightly pointed out, the defendants/appellants in the present case were in a much stronger position than the defendant in the Ojikutu case.
For the above reasons, this appeal must be allowed. The judgment of Adedipe J., in suit LD/397/70 delivered in the High Court of Lagos on 5th October, 1970, is accordingly set aside. Having regard to the amount claimed and the fact that the defendants/appellants have filed a notice of intention to defend the action supported by an affidavit showing a prima facie defence, we think it is in the interest of justice that the claim be heard on the merits. We therefore order that the case be remitted to the High Court of Lagos for hearing on the merits, each party being at liberty to ask for pleadings if it be so desired.
The defendants/appellants are awarded costs of this appeal assessed at 34 guineas.
Appeal allowed.
SC.47/1971
