The United Africa Co. Ltd. V. Ettouri Krekchi (1951)

LawGlobal Hub Judgment Report – West African Court of Appeal

Time extended to file defence and counterclaim subject to certain conditions—Defence and counterclaim filed but conditions not complied with—Judgment given against appellant in default of defence and counterclaim—Procedure to be adopted where writ and particulars of claim disclose no cause of action.

Facts

There were originally two separate actions, one brought by respondent against appellant, and one by the appellant against respondent. These actions were consolidated.

The appellant was in default for almost every possible reason in the conduct of the proceedings. Finally the Judge extended the time for filing defence and counterclaim upon certain conditions.

The appellant failed to comply with the conditions, but nevertheless, filed his defence and counterclaim. The respondent sought judgment on grounds no defence had been filed. The Judge entered judgment for the respondent and dismissed the counterclaim.

Counsel for the appellant argued that the Judge should not have entered judgment without considering the defence; that Judge was wrong in dismissing counterclaim; that the writ and particulars of claim disclosed no cause of action.

Held

The defence had been filed in defiance of an Order of Court and the Judge was entirely justified in granting an order for judgment on respondent’s claim. The Judge’s order on the failure to file counterclaim was, in effect, dismissal of appellant’s action in default of a statement of claim and was rightly made.

Held further, that, having regard to all the circumstances of the case, the appellant could not now allege that writ and particulars of claim disclosed no cause of action.

Appeal dismissed.