Olubusola Stores v. Standard Bank (1975)
LawGlobal-Hub Lead Judgment Report
G. B. A. Coker, JSC
Standard Bank Nigeria Ltd., had sued the present appellant as defendant in the High Court, Lagos, where the writ of summons was endorsed for a claim of an amount of 9,774Pounds: 11s: 6d. (or N19,549.15) together with interest, as money loaned by the plaintiffs to the defendants at the request of the latter and which the latter had failed to repay.
The action as filed was meant for the “Undefended List” and the plaintiffs’ writ was accompanied by an affidavit which set out, inter alia, the facts of the case and stated that the money was still owing.
The writ was issued on the 14th December, 1972, and when it was returned on the 30th April, 1973, there was a report that the defendants had not been served. The plaintiffs thereafter applied by motion ex parte to the court for an order for substituted service of the writ on the defendants by pasting same “on the front door of the defendant house.” An order was made in terms of the motion on the 11th June, 1973, and the return date as stated on the order by the learned Judge was the 9th July, 1973. The order was formally drawn up and as it is pertinent to the judgment we reproduce it hereunder in full. It states as follows:
“UPON THIS MOTION EX-PARTE coming before the Court AND UPON READING the Affidavit in support thereof AND AFTER HEARING Ariori Esquire, of Counsel for the Plaintiff/Applicant move the Court:
IT IS ORDERED that the Application praying this Honourable Court for an order that the Writ of Summons and other papers in the Suit herein be served upon the Defendant/Respondent by pasting the same on the front door of the aforesaid Defendant/Respondents’ house be and the same is granted.
IT IS FURTHER ORDERED that the Suit herein do stand adjourned to come up for mention on the 9th day of July, 1973.
DATED at Lagos this 11th day of June, 1973.”
On the 9th day of July, 1973, the matter came up again but not before the judge who had it in hand all along but was instead listed before another judge who, on that day and without being satisfied with respect to the contents of the previous order, entered judgment for the plaintiffs in the following terms-
“COURT Judgement is entered for the plaintiff for the sum of N19,549:17k with interest at 10 per cent annum as from the date of issue of writ.
I award the plaintiffs costs assessed at N98.29.”
The present appeal is against that judgment and it was contended before us by learned counsel for the appellants, i.e. the defendants in the court below, that the learned Judge who entered judgment for the plaintiffs erred in law in that the judgment was entered in clear inadvertence to the provisions of the rules dealing with actions on the undefended List. On the other hand, learned counsel for the plaintiffs submitted that the judge had a discretion in that if he did not enter judgment as he did, the defendants would never have learned of the action or be appraised of the writ. Eventually, however, learned counsel for the plaintiffs conceded that if he had realised that the case was set down on the 4th July, 1973, only for mention, he would not have asked for judgment on that day against the defendants.
We point out that the relevant rules dealing with actions on the Undefended List are very often employed but as well equally so often misapplied. Order 3 Rule 9 of the old rules of the Supreme Court (Cap. 211 in the 1948 Edition of the Laws of Nigeria – which are the rules then applicable in the High Court of Lagos State) provides as follows:-
“9. The Rule prescribes clearly that an action which is meant to be on the Undefended List should be commenced by a writ but such writ should be accompanied by an affidavit setting out the facts of the case and other matters described in that Rule which would satisfy the court to enter the suit for hearing “in what shall be called the Undefended List”. After the writ has been so marked, the usual copy for service would be delivered to the defendant and one of the two alternatives would follow. If the writ was served upon the defendant in sufficient time to enable him to comply with Rule 11 then the defendant would so comply. If, on the other hand, for one reason or the other the defendant is unable to and does not otherwise comply with Rule 11, then the procedure outlined in Rules 12 and 13 should be followed. Rules 11, 12 and 13 provide as follows:-
“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.”
Evidently, Rule 11 requires that a defendant who does not admit the claim and proposes to defend the action should file an affidavit as stated in that Rule “not less than five days before the date fixed for hearing”. Manifestly, this postulates that if a writ marked for the Undefended List is to be properly served at all, it should be served in such a way as to give the defendant more than five days before the return dated on the writ or rather before the day fixed for the hearing of the action. It is pertinent to observe that Rule 12 gives the court a discretion in the circumstances stated therein to let in a defendant to defend the action upon his complying with the provisions of that Rule. Where a defendant is unable to comply with Rule 11 or otherwise fails to comply with Rule 12, then the provisions of Rule 13 apply and in that 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 present case, as we pointed out before, the action was meant for the Undefended List and indeed the writ was so marked. On the 9th July, 1973, which was the return date on the order for service by substitution, the report to the court about service was to the effect that “the pasting was effected on the 4th July, 1973.” If the writ was served on the 4th July, 1973, it was not possible in any case for the defendants to comply with Rule 11 on or before the 9th July, 1973, since manifestly the period of five days before the day fixed for hearing was not available to them. On those facts the provisions of Rule 13 will not apply and it is difficult to see how the learned trial Judge could justifiably have entered judgment for the plaintiffs as for an action on the Undefended List. Besides this, however is the fact that the order made on the ex-parte application on the 11th day of June, 1973, had fixed the case only for mention on the 9th day of July, 1973. If, as indeed it was the case, the suit was only to be mentioned on that day, the learned trial Judge clearly wrongly treated that date as a date fixed for the hearing of the action and erred in law as the entry of judgment on that day was in breach of the provisions of Rule 13. As stated before, learned counsel for the plaintiffs before us conceded that he would not have asked for judgment if he had realised that the case was fixed only for mention on the 9th July, 1973.
The provisions dealing with actions on the Undefended List are apparently technical and we think that they are purposely created in that way in order to ensure that by asking the plaintiff to comply strictly with those Rules injustice is being avoided to a defendant whose freedom to defend the case has been rather restricted. The provisions of the Rules are designed as they are in order to ensure the safeguards which must necessarily be available to a defendant if the Rules are followed strictly; and if those Rules are complied with, the defendant need suffer no prejudice in his defence if he himself and on his part has complied with the Rules. In the present case, there was clearly no advertence to the provisions of those Rules and even if the matter came before the learned trial Judge on the 9th July, 1973, for the first time, as obviously it did, the court should have adverted at least to the provisions of Order 3 Rule 11 which postulated that the summons must have been served upon a defendant, in order to make Rule 13 applicable, so as to give him “not less than five days” before the day on which it is supposed to enter judgment against him.
In the end, this appeal must and does succeed. The judgment of the High Court, Lagos, (George, J.) in Suit No. LD/49/73, including the order for costs, is set aside. The following orders are hereby made:-
(i) the case is hereby sent back to the High Court, Lagos, for retrial before another judge of that jurisdiction;
(ii) the defendants will be allowed to defend the action and if either party asks for an order for pleadings, such an order should be made;
(iii) the Court below should carry out these orders;
(iv) the respondents will pay to the defendants the costs of this appeal fixed at N160 and the costs in the court below shall abide the event.
Other Citation: (1975) LCN/2056(SC)
