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:-