Jane Alatede V Joseph Jeje Falode And Anor (1966)

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BRETT, J.S.C. 

This is an appeal against the order of Ogunkeye J., in the High Court of Western Nigeria, “striking out” a writ of summons. It is more usual to talk of setting aside a writ of summons, which is the court’s own order, than of striking it out, but the intention seems to have been to quash the writ altogether, and we attach no special significance to the expression used. Since the proper construction of the relevant provisions of the High Court (Civil Procedure) Rules is said to be of importance in a number of actions now pending, the hearing of the ap-peal was expedited and by consent compliance with certain of the provisions of Order 7 of the Supreme Court Rules was dispensed with.

Order 2, rule 1, of the High Court (Civil Procedure) Rules provides that-

“Every action shall be commenced by writ of summons, which shall show the cause of action and be indorsed with a statement of the nature of the claim made, or of the relief or remedy required in the action.”

Rules 2-7 provide for other indorsements and rule 8 reads –

“(1) A writ of summons shall be in the form provided in the First Schedule to these Rules.

(2) Blank forms shall be obtainable at every Registry and no other form may be used.”

Rule 9 provides for the preparation of the writ by the plaintiff or his solicitor or by the Registrar from the dictation of an illiterate plaintiff who is suing in person, and rule 10 reads –

“Every writ of summons issued out of the Registry shall be signed and sealed by the Registrar of the court issuing the writ and shall thereupon be deemed to be issued.”

The remaining rules in Order 2 are immaterial.

The form of writ of summons obtainable at a Registry measures 7 inches by 10 inches. On the obverse, below the heading and the name of the judicial division and the number of the suit, there is space for the name of a single plaintiff and a single defendant and then a printed formula commanding the persons to whom the writ is addressed to attend the court at a stated time and place. Then follow a space for the Registrar’s  signature and seal and for a re-cord of fees and at the foot there appear the words “The plaintiffs claim is indorsed on the reverse side hereof.

The reverse reads–

”Writ of Summons

Indorsements

1. The plaintiffs claim is . . .

2. The plaintiff’s address for service is . . .

3. The address of the plaintiffs solicitor is . . .

4. Other Indorsements (when required by law) . . .

Signature of (Solicitor for) Plaintiff

Name in full (in block letters)

The space available for the plaintiffs claim measures 6 inches by 7 inches, and that for other indorsements 7 inches by 7 inches.

In the present case the plaintiff’s solicitor prepared the writ in accor-dance with Order 2 rule 9, and instead of writing or typing the indorsements on the reverse of the form obtained from the Registry he had them typed on a separate sheet of paper and pasted that sheet of paper on the reverse of the form. The size of the form and the way in which it is laid out might sometimes he insufficient for all the indorsements required, and where this happens presumably something like what section 32(a) of the Bills of Exchange Act calls an “allonge” must be used, but there is no suggestion in this case that the indorsements could not conveniently have been written or typed on the reverse of the form.

On the return date shown in the writ of summons Counsel appeared for the defendant and objected that pasting a piece of paper on the reverse of the writ was not a compliance with Order 2, rule S, and that the writ was not properly before the court. The Judge held that some of the indorsements re-quired had been omitted, and went on to say –

“Again it is not in the contemplation of the law that a piece of paper can be pasted on the reverse side for the indorsement. Where any paper other than the form is used, it is my view that the writ is not proper, nor is any indorsement thereon proper.

The objection is well taken. 1 cannot now consider an appli-cation for an adjournment because in my view the defect cannot be cured by an amendment. the writ is therefore struck out.

The appeal was argued on the assumption that what the Judge regarded as incapable of being cured by an amendment was not the omission of some of the indorsements required but the appearance of the indorsements on a separate piece of paper pasted to the reverse of the form instead of on the record of the form

The defendant does not allege that he has suffered, or that he fears that he might suffer, am prejudice. The question is a purely domestic one, touching the practice of the High Court, and involving no judicial decision on the merit of the case. In our vice it is peculiarly the province of the Judges of the High Court to settle such a question, and this Court ought not to reverse the decision of the court below unless it is clearly shown, to be based on a misunderstanding of what the Rules of Court require. It may well be that in commercial usage the word “indorse” is no longer restricted to its primary meaning of writing on the back of a document, and it is common knowledge that an endorsement on a licence to drive a motor vehicle takes the form of an entry on an inner page of a small book. However, commercial usage is not an infallible guide to the meaning of the High Court (Civil Pro-cedure) Rules, and the licence affords no analogy, since the form of the writ enables the required particulars, or as much of them as there is room for, to be endorsed on it in the primary sense of the word. The appellant has not satisfied us that the Judge was wrong in the view he took, and the appeal is dismissed with costs assessed at 25 guineas.

Other Citation: (1966) LCN/1329(SC)