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.