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.