Jammal Engineering Co.ltd Vs Misr (Nig.) Ltd (1972)

LawGlobal-Hub Lead Judgment Report

O. ELIAS, C.J.N.

The plaintiff claimed against the defendant the sum of 670 pound:3:6d. (Six Hundred and Seventy Pounds, Three Shillings and Six Pence) as due

to the plaintiff and payable by the defendant and as balance of the price of goods sold and delivered to the defendant at its request in Lagos during the years 1962-64 as per the attached statement of account. The plaintiff also claimed interest on the said pound 670:3:6d at the rate of 5% per annum from the date of judgment, until final payment. The case was placed on the undefended list.

The plaintiff’s accountant’s affidavit showed that during the year 1962-64, the plaintiff sold and delivered to the defendant goods to the value of 24 pound,205, that between December,1962, and June, 1964, the defendant paid to the plaintiff a total sum of 23 pound,534:16:6d. which was duly acknowledged by the plaintiff and credited to the defendant’s account as per Exhibit A attached, that the balance of 670 pound:3:6d. remained unpaid and that, despite repeated demands for payment, the defendants had neglected and/or refused to pay, although he had never sought to deny its indebtedness. When the case came up on March 3, 1969, no notice of intention to defend had been filed and there was no application before the court for an extension of time to file notice of intention to defend. The trial Judge, therefore, entered judgment for the plaintiff as prayed in the writ, with costs assessed at 50 guineas.

From this judgment, the defendant/appellant appealed to this court on the following grounds:

1. The learned trial Judge erred in law in entering judgment for the plaintiffs when the affidavit in support of the application for summons

(a) was not sworn to at the time of filing the application for summons:

(b) alleged that the transaction between the plaintiffs and the defendant was for sale of goods when the account exhibited thereto showed that there were unspecified transactions in respect of International Trade Fair in 1962 and 1964;

(c) alleged that “during the years 1962-64, the Plaintiff sold and delivered to the defendants the goods to the value of

24 pound,205:=: =: when the account exhibited thereto showed that the defendant was over-charged in respect of entries made on 15th April, 1963, and August 15, 1963, and consequently the affidavit cannot be regarded as accurate; and

(d) did not verify the entries in the account exhibited thereto.

2. The teamed trial Judge erred in law and/or failed to exercise his discretion judicially in putting the action on the Undefended List and also in failing to make an order for pleadings.
3. The learned trial Judge erred in law in failing to observe that when the matter came before him he was not bound to enter judgment particularly having regard to the circumstances hereinbefore mentioned.
4. Judgment is against the weight of evidence.

The defendant/appellant hereby sought to set aside the judgment of the trial court including the order as to costs, and to have the matter remitted to the court below for pleadings to be ordered and the case to be tried and determined on the merits.

Chief F.R.A. Williams, the learned counsel for the appellant, contended that the trial Judge was wrong to have entered judgment for the respondent as he had done, as the latter’s affidavit did not show the true position of the account in that, although the Statement of Claim was for goods sold and delivered, the items in the attached statement of account referring to “International Trade Fair” could not be properly explained as forming part of a transaction dealing with goods sold and delivered. Counsel argued that it is competent for the appellant to make the point that the affidavit evidence does not support the claim. He cited Shumur v. Young 5 TLR 155 and Khawam v. Elias (1960) 5 FSC 224 to support his contention that the trial Judge is not bound to enter judgment for a plaintiff simply because the defendant did not appear. In the Shurmur Case, counsel for the defendant contended that where the defendant showed on the face of his affidavit facts which amounted to a defence, the defendant was entitled to have unconditional leave to defend, unless the affidavit contained contradictory statements, or unless documents were produced contradicting the statements in the affidavit. The case itself was an action brought to recover a liquidated sum of 352 pound: and, on an application (under the Old Order XIV, r. I of the English Rules) for leave to sign final judgment for the amount endorsed on the writ, the defendant filed an affidavit in answer setting up an agreement to pay the debt by instalments. The judge at chambers gave the defendant leave to defend as to 300 pound, part of the claim, upon bringing that sum into court, and gave unconditional leave to defend as to the residue. Upon the order being affirmed by the Divisional Court, the defendants appealed to the Court of Appeal where the defendant’s counsel’s contention was rejected and the trial Judge’91s exercise of discretion was upheld. The Master of the Rolls put the position thus, at p.224:

“According to the rule the judge must in each case exercise his discretion; By Rule 1 of Order XlV, the plaintiff must specially endorse the writ, there must be an affidavit verifying the cause of action and the amount claimed, and stating that there is no defence to the action. The judge, even though the defendant made no answer, was not bound to give the plaintiff leave to enter final judgment. If the defendant satisfied the judge that he had a good defence on the merits, the judge could not make an order empowering the plaintiff to enter judgment; but the judge must be satisfied. If the defendant disclosed such facts as might be deemed sufficient to entitle him to defend, that fell short of satisfying the judge that he had a good defence. Rule 1 therefore dealt with the jurisdiction to enter judgment. Rule 6 applied to leave to defend. By that rule leave to defend might be given unconditionally, or subject to such terms as the judge might think fit. There was no fetter imposed on that discretion.”

It is to be observed that in that case the defendant did put in an affidavit at the trial; in the present case, the defendant did nothing.

Again, Chief Williams referred us to Khawam v. Elias (supra), in which the plaintiff sued for a declaration of title to certain property held by the defendant on lease on the ground that the defendant had mortgaged to him the unexpired residue of the term to secure a loan, the plaintiff also claiming possession for the residue of the term. The defendant was living abroad, and plaintiff obtained leave to serve his local agent. Pleadings were then ordered. The plaintiff’s Statement of Claim stated that the loan was secured by a sublease of only a portion of the property. As no defence had been filed, the plaintiff applied for and was granted judgment by default. The judge’s order reads thus: “Judgment is entered for the plaintiff on his claim” with costs. The local agent then applied to the court to have the order set aside and for the case to be re-listed. On the refusal of this application, the defendant appealed to the Supreme Court which held inter alia that the affidavit and proposed defence showed no merits. In view, however, of the discrepancy between the affidavit claiming declaration and possession in respect of the whole of the premises and the Statement of Claim averring that the security was a sublease of only a portion of the property, the court set aside the order and directed that the suit be relisted. But it is clear that this case hardly supports Chief Williams’s contention, since there was again affidavit evidence, as there was not in the present case, and that there was effort on the part of the defence at the trial to dispute the plaintiff’s claim. Chief Williams referred to High Court of Lagos Rules (i.e., the former Supreme Court of Nigeria Rules), Order 3, rules 9 and 13, to which the Old English Order XIV (pre-1962) is similar. There can be no doubt that Order 3, rules 9 and 13, was duly complied with in the court below when the trial Judge was satisfied that there were good grounds for believing that there was no defence to the claim and the defendant, though duly served, gave no notice of his intention to defend as required by Order 3, rule 11. Nor, having neglected to deliver a notice of defence and affidavit, did the defendant take advantage of Order 3, rule 12 to file an affidavit disclosing a defence on the merits and satisfactorily explaining its neglect at any time before judgment was entered, in order that the court might let it in to defend upon such terms as the court might think just The trial Judge was, therefore, right to hear the case as an undefended suit and to give judgment thereon without calling upon the plaintiff to summon witnesses before the court to prove his case formally.

Mr. W.J. Dosunmu, the learned counsel for the respondents, in reply asked that the appeal be dismissed on the ground that the defendant/ appellant had failed to give notice to defend at the trial. He maintained that the learned trial Judge was correct in the exercise of his discretion; he cited Kudoro v. Alaka (1956) 1 FSC 82 which is, however, irrelevant since it relates only to a trial Judge’s exercise of his discretion in connection with an application for enlargement of time in which to appeal.

Upon our interpretation of Order 3, rules 9-13 of the High Court of Lagos Rules and of the decision in Shurmur v. Young discussed above, we hold that the trial Judge’s exercise of his discretion in entering judgment for the plaintiffs/respondents with costs had been right in the circumstances of this particular case when the defendant was represented by counsel but did not see fit to make any application for an extension of time in which to seek to defend or indeed in any way show a desire to defend the claim at all.

Neither in the court below nor in this court did the defendant/appellant ever deny owing the original amount or the balance. The defendant/appellant’s indebtedness in the balance claimed against it was, to our mind, the vital issue.

This appeal must accordingly be dismissed with costs to the plaintiffs/ respondents assessed at 31 guineas.

Other Citation: (1972) LCN/1463(SC)