U.T.C. (Nig.) Ltd V. Chief J.P. Pamotei & Ors (1989)

LawGlobal-Hub Lead Judgment Report

UWAIS, J.S.C.

When this appeal was heard on the 5th day of December, 1988 it was summarily allowed with N500.00 costs to the appellant. We then intimated that the reasons for the judgment would be given today. I now state my reasons.

In the High Court of Lagos State holden at Ikeja, the Respondents brought an action against the appellant and one other. The writ of summons, which commenced the suit, was filed together with a statement of claim on the 9th day of June, 1984. The appellant together with the other party, as defendants, filed a memorandum of appearance on the 16th day of May, 1984. The defendants then took no further action.

Pursuant to the provisions of Order 10 of the High Court of Lagos State (Civil Procedure) Rules, Cap. 52 of the Laws of Lagos State 1973, the Plaintiffs applied to the High Court for judgment to be entered for them. The application was granted and judgment was accordingly entered for the plaintiffs by Longe J. Part of the judgment reads as follows-

“The plaintiffs have filed their summons for judgment under order 10 of our Rules and supported by an Affidavit.

I have read all these documents and have listened to their counsel, Mr. M. A. Apampa, for the Judgment Summons. (sic)

I am satisfied that this is proper case where final judgment can be entered for the Plaintiffs in the absence of the Defendants filing any affidavit of Intention to defend.

Judgment is therefore, hereby entered in the sum of N54,991.00 in favour of the plaintiffs against the Defendants being money had and received by the Defendants on diverse dates between September and November, 1983 for the purchase of certain brands of vehicles which were never delivered.

The judgment sum shall carry 6% interest rate until it is paid.”

Order 10 rule 1(a) of the High Court of Lagos State (Civil Procedure) Rules, Cap. 52 of Laws of Lagos State, 1973 provides-

“1(a) Where the defendant appears to a writ of summons specially indorsed with or accompanied by a statement of claim under Order 3, rule 4, the plaintiff may on affidavit made by himself or by any other person who can swear positively to the facts, verifying the cause of action and the amounts claimed (if any liquidated sum is claimed), and stating that in his belief there is no defence to the action except as to the amount of damages claimed, if any, apply to a Judge in Chambers for liberty to enter judgment for such remedy or relief as upon the statement of claim the plaintiff may be entitled to. The Judge thereupon, unless the defendant shall satisfy him that he has a good defence to the action on the merits or shall disclose such facts as may be deemed sufficient to entitle him to defend the action generally, may make an order empowering the plaintiff to enter such judgment as may be just, having regard to the nature of the remedy or relief claimed.”

On the 27th day of June, 1984, the defendant (now appellant) brought a motion in the High Court under Order 24 rule 15 of the High Court of Lagos State (Civil Procedure) Rules, Cap. 52 for leave to set-aside the judgment entered for the plaintiffs. The affidavit in support of the application was sworn to by one Muyiwa Tugbobo, and it reads as follows-

1. That I am a Solicitor in the Chambers of Debo Akande & Okonjo as such I am conversant with the facts of the case.
2. That the pleadings of this suit were served on us by our client on the 18th day of June, 1984.
3. That we had difficulty in reaching our client to enable us prepare a statement of defence.
4. That on the 25th day of June, 1984 we in fact filed a Motion on Notice for extension of time within which to file our Statement of Defence out of time. The receipt of payment is hereby attached and marked exhibit “A”.
5. That on the 25th day of June, 1984 Counsel for the 1st defendant arrived late in Court due to the unusual traffic hold-up along Airport Road, Ikeja on his way to court, hence, Judgment was entered against the 1st defendant in default of defence.
6. That the reason for the 1st defendant’s Counsel coming late to Court that morning was not deliberate or intended to show disrespect to the Honourable Court but for the unavoidable traffic hold-up. Moreover, the suit was listed as No.4 on the cause List that morning.
7. That the 1st defendant has a real defence to the suit and that the 1st defendant’s statement of Defence is herewith attached and marked exhibit “B”.
8. That in view of the defence filed and the triable issue raised therein there is need to hear the matter on merits.”

Paragraphs 3 to 7 of the Statement of Defence exhibited to the quoted affidavit in support of the motion on notice state thus –

“3. In answer to paragraphs 4 and 5 of the statement of claim, the 1st defendant states that they were unaware of any transaction pleaded therein because none of their receipts show any sale of cars to any of the said plaintiffs.

4. In answer to paragraph 6 of the statement of claim, the 1st defendant states that no demand was made to them and in any event no payment was made to them that will warrant delivery of cars.
5. The 1st defendant states that no U.T.C. receipt had been issued to any of the plaintiffs at any time.
6. The 1st defendant is not aware of any “sundry receipts issued by the 2nd Defendant referred to in paragraph 7 of the Statement of claim.”

Order 24.rule 15 of the Rules provides –

“15. Any judgment by default, whether under this Order or under any other of these Rules, may be set-aside by the Court or a Judge in Chambers, upon such terms as to costs or otherwise as such Court or Judge in Chambers may think fit, and where an action has been set down on motion for judgment under rule 11 of this Order, such setting down may be dealt with by the Court or Judge in Chambers in the same way as if judgment by default had been signed when the case was set down.” The application was granted by Longe, J. on the 9th day of July, 1984.

His ruling reads in part as follows –

“In my humble opinion, however, Order 24 Rule 15 under which the defendants have sought Court’s order is a legislation in which both law and equity are combined. It is trite principle of law that where law and equity conflict, equity should prevail. Thus, if there are sufficient grounds given a judgment summarily given can he set aside in the interest of justice. Underlined in this provision is the fact that a judgment heard on its merit serves a better chance to convince a reasonable man that justice has been done than one obtained by summary judgment even though the Rules support such step. I am inclined to take this view because the Applicant’s motion dated 25th June, 1984 for leave to show their defence was filed at exactly 9.34 a.m. on the very day judgment was entered. It is conceded that they were late in bringing such application but what is necessary to look for is whether or not there is intention or step taken to show they have intention to defend.

Within the four principles enunciated in some of the judgments cited under which judgment can be set-aside, I believe there has not been too much delay on the part of the Defendant to be allowed to be heard on the merits. I am also fortified in this belief that the Plaintiffs and their Counsel have nothing to fear or lose if they allow this matter go on its merit. No doubt they have put on a lot of expense in terms of money and time but they can be compensated for this because the discretion is finally that of the Court whether to grant or to refuse the Order to set aside. See the case of Evans v. Bartlam, (1937) 2 All E.R. 646 at p.650 where Lord Atkin in the House of Lords set out such exercise of discretion.

I agree therefore with Applicant’s Counsel that Order 24 rule 15 of our Rules cover all grounds including judgment obtained under Order 10 of our Rules.

I believe the course (sic) of equity would be properly served if the application is granted although with costs.

I therefore set aside that judgment of this Court in this suit given on 25th June, 1984 so that the issues contained in the Statement of Defence can be argued and resolved at trial. There shall be a cost of N150.00 to the Plaintiff’s/Respondent (sic)”.

Aggrieved by the ruling the plaintiffs appealed to the Court of Appeal. The only question raised by the plaintiffs for determination by the Court of Appeal was-

“Whether a defendant who failed to file an affidavit disclosing his defence in ‘answer to a summons for summary judgment under Order X is entitled to have the judgment set aside on the ground that he was unavoidably absent at the hearing of the summon and also because he in fact had a good or triable defence to the action.”

In its judgment the Court of Appeal (per Ademola, J .C.A. with whom Mohammed and Kolawole, J.J.C.A. agreed) held as follows-

“I am of the view that the question for determination in this appeal is well formulated in the appellants’ (plaintiffs’) brief and not as it is put in the Respondent’s (defendant’s) brief. The question for determination here is not whether the learned Judge has exercised his discretion rightly in setting aside the judgment but whether there is jurisdiction in him to do what he has done.

Looked at in that way the argument of Respondent’s counsel and the reliance on the fact that a statement of defence has been exhibited in the proceedings become peripheral to the main issue of power being in the Judge to do what he did i.e. set aside a judgment obtained under Order 10 procedure.

I shall deal with the peripheral issue dwelt upon by learned senior Counsel for the Respondent lest it may be sought (sic) that there is substance in it.

From the submission made on behalf of the Respondent it is clear there is a misconception about what the case of JETHWANI (i.e. Nishizawa Ltd. v. Jethwani, (1984) 12 S.C. 234) decided. I do not think it would be right, with respect, to rely on what ANIAGOLU and OPUTA, J.J.S.C, said in the JETHWANI Case as correctly interpreting Order 10 Rule 3(a) of the Lagos State Civil Procedure Rules. The better view, is as contained in OBASEKI’s J.S.C. (sic) judgment in the case at pages 274 to 275 and supported by Coker and Kawu, J.J.S.C. Shortly put it lays down that the only way to show cause under Order 10 rule 3(a) of the Rules is by defendant filing an affidavit which shows the defence and not the filing of a proposed statement of defence. Therefore, I am in agreement with Chief Williams that the proposed Statement of Defence filed in these proceedings after the summary judgment had been signed is irrelevant in this case. I hasten to add that if it was even filed before the signing of judgment it would still not be relevant consideration. The case of N.A. Williams & Ors. v. Hope Rising Voluntary Funds Society, (supra) (i.e. (1982) 1 – 2 S.C. 145) is of no relevance here. The real question here is whether a judgment obtained under Order 10 can be set aside under Order 24 rule 15.The issue would seem to be a novel point in our law. The nearest to it and upon which the Supreme Court had given an answer is in the case of Bank of the North Ltd. v. Intra Bank S.A., (1969) 1 All N.L.R. 91 dealing with judgment under an undefended list.

I am of the view that a judgment obtained under Order 10 is not a default judgment as commonly understood. The Defendant against whom such a judgment is obtained has not in any way defaulted in carrying out any order of Court; he has just not shown why judgment should not be entered in favour of the Plaintiff. He has left the case of the Plaintiff unanswered and in that circumstance the Plaintiff is entitled to judgment. In such situation, the judgment so obtained in my opinion is a judgment on merits and not on default of pleadings.

The next and final question is, can such a judgment on merit be set aside by Order 24 Rule 15

The answer is in my judgment in the negative. Chief Williams is right that after the decision in Spira v. Spira,(supra) (1939) 3 All E.R. 924) the Rules Committee proposed an amendment to the Order 14 R.S.C. in England and the result is the present Order 14 rule 11 which allows a judgment obtained under Order 14 in the same circumstances as our Order 10 could be set aside. Our Rules has (sic) not got the equivalent of Order 14 rule 11 of R.S.C. so such judgment cannot be set aside here nor would Order 14 rule 11 be applicable here; Bank of North Ltd. v. Intra Bank S.A., (supra). The provision of Order 14 rule 11 in England is a recognition of the fact that Order 27 rule 15 (same as our Order 24 rule 15) cannot be used to set aside a judgment obtained under Order 14 R.S.C.

Is the same true of our Order 24 rule 15 in relation to Order 10 I am afraid the answer is the same here. Firstly, the two orders are in pari materia and I am persuaded by the reasoning in the two English authorities cited.

Secondly, upon a true construction of the Order 24 rule 15, the order is not applicable to a judgment obtained under Order 10.

I think the rule should not be taken in isolation from other provisions under Order 24. It must be read and construed in the con of the whole Order which is dealing with default of pleadings.”

The Court went on to allow the appeal before it, setting aside the ruling of Longe, J. which set-aside the summary judgment he had earlier given to the Plaintiffs. Thus restoring the judgment obtained by the plaintiffs. It then became the turn of the defendant to appeal to this Court against the decision of the Court of Appeal.

It is pertinent to point out that the question for determination by the Court of Appeal which was formulated in the defendant’s brief was-

Whether the discretion of the High Court was properly exercised in setting aside the summary judgment and granting the Respondent (defendant) leave to defend the action.”

In the appeal now before us the defendant has filed four grounds of appeal which state –

(i) The Court of Appeal erred in law in setting aside the Ruling of the High Court delivered by the Hon. Justice E. F. Longe at the High Court, Ikeja dated the 9th day of July, 1984 in its consideration of the interpretation of Order 10 Rule 3(a) of the High Court of Lagos State Civil Procedure Rules Cap. S.2 (sic) of the Laws of Lagos State 1972 (sic) when it held that a defence filed after the entry of judgment is of no effect even if it raises triable issues and/of a good defence.

(ii) The Court of Appeal erred in law in its decision that under Order 10 only an affidavit stating a good defence can bar the automatic entry of judgment.

(iii) The Court of Appeal erred in law in its consideration of the decision in Nishezuarana Ltd. VS. Jethswani (sic) 1984 12 S.C. P.9 (sic) 234 at 284 – 285 when it ignored the reasonings of Ayangolu, (sic) J.S.C. and Oputa, J.S.C. and that of Eso J.S.C. in the case of R.O. Shodipe v. Lemikainen (sic) (1986) 1 N.W.L.R. (Pt. 15) 220 at 231 brought to its attention.

(iv) The Court of Appeal erred in law when it held that judgment under Order 10 is not a default judgment but a judgment on merits.”

and in its brief of argument raised three questions for determination which are –

“(a) Whether judgment obtained under Order 10 of the High Court of Lagos State (Civil Procedure) Rules, 1972 is a judgment on the merit or a default judgment.

(b) .Whether in proceedings under Order 10 a trial Court can close his (sic) eyes against a Statement of Defence, which raises triable issues filed by the Respondent (sic) defendant even if filed irregularly.

(c) Whether considering the peculiar facts of this case, the trial Judge was not right in setting aside his earlier judgment and letting in defence which raised triable issues.”

In the plaintiffs’ brief only one question for determination was raised and it was put thus –

“Whether in an application for summary judgment under Order 10 of the High Court of Lagos State (Civil Procedure) Rules, it is permissible for a defendant seeking leave to defend to put in only a Statement of Defence without filing an affidavit.”

Chief Debo Akande, learned Senior Advocate, for the defendant argued that the Court of Appeal erred in law by holding that a judgment obtained under Order 10 of the High Court of Lagos State (Civil Procedure) Rules, Cap. 52 is not a default judgment but a judgment on merits. He advanced the argument by stating that a good defence can stop the entry of judgment under Order 10 and the Court of Appeal was in error when it held that a judgment under Order 10 could only be stalled by an affidavit sworn to by or on behalf of a defendant. Learned Senior Advocate then submitted that the defendant by not filing, at the time of entering judgment, an affidavit to show cause, had defaulted in complying with the requirements of Order 10 rules 1, 2 and 3. In the circumstance, he contended that Order 24 rule 15 of the High Court of Lagos State (Civil Procedure) Rules Cap. 52 would apply; and the trial Judge would have the power either inherently or under Order 24 rule 15 to set-aside the judgment and grant an extension of time for the Statement of Defence to be filed, if he (the Judge) was satisfied that a triable issue had been raised by the defence therein, Chief Debo Akande referred to the observation made by the Court of Appeal, in its judgment, that this Court had held in Nishizawa Limited v. S.N. Jethwani (supra) that under Order 10, the cause to defend an action could only be shown in an affidavit and not statement of defence. The Court of Appeal considered the lead judgment written by Obaseki, J.S.C as a majority judgment because the Court of Appeal held, he stated therein, that a defence under Order 10 could not be shown by a statement of defence but affidavit, while Aniagolu and Oputa, J.J.S.C held the contrary view that a statement of defence could properly be a defence; and Coker and Kawu, J.J.S.C, who were the remaining members of the panel, did not express any opinion other than they agreed with the lead judgment of Obaseki, J .S.C, Learned Senior Advocate submitted that even Obaseki. J.S.C. was at ad idem with Aniagolu and Oputa, J.J.S.C., because he held earlier in his judgment at page 257 of the report that a trial Judge dealing with a matter under Order 10 rule 3 could not shut his eyes to a statement of defence filed by a defendant.

Finally, Chief Akande submitted, in his oral argument, that if the provisions of Order 24 rule 15 of the High Court of Lagos State (Civil Procedure) Rules, Cap, 52 cannot be relied upon to set-aside a summary judgment given under Order 10, then Order 14 rule 11 of the English Rules of the Supreme Court (White Book) would apply in enabling the trial court to set-aside the summary judgment.

In reply, Chief Williams, learned Senior Advocate, for the plaintiffs submitted in the plaintiffs’ brief that the object of the procedure laid down under Order 10 for obtaining summary judgment is to discourage frivolous and unmeritorious defences which tend to give debtors longer time before they get compelled to pay their debts, Hence it becomes necessary, before the trial court could be satisfied that a defence is meritorious, for the defence to be disclosed by affidavit evidence, Mere Statement of Defence signed by counsel is not sufficient. He conceded that the court may look at a Statement of Defence which on the face of it raises triable questions of law but added a rider, that the Court is not entitled to pay any regard to facts pleaded in such a Statement of Defence unless the facts are verified or proved by affidavit evidence.

In his oral argument before us, Chief Williams submitted that the judgment given by Longe J. was not a default judgment and as such cannot be set-aside because there arc no provisions under the High Court of Lagos State (Civil Procedure) Rules, Cap. 52 by which judgment obtained under Order 10 of the Rules can be set-aside. He said that the provisions of Order 24 rule 15 of the Rules have no application to a judgment given under Order 10 because they apply to default in pleadings only. He cited in support of his argument Spira v. Spira (supra) and stated further that in England a summary judgment can be set-aside by virtue of the provisions of Order 14 rule 11 of the Rules of Supreme Court (White Book) which specifically so provides. Learned Senior Advocate contended that Order 14 of the English Rules as it exists today is different from Order 10 of the High Court of Lagos State (Civil Procedure) Rules; and therefore a party that applies for summary judgment under Order 10 is not in the same position as a party applying for judgment under Order 14 of the English Rules, On that premise, he submitted that Order 14 rule 11 of the English Rules cannot be transplanted into Order 10 which is a complete code for summary judgment.

It appears to me that the real question for determination in this case is:

Whether once a summary judgment is given pursuant to the provisions of Order 10 of the High Court of Lagos State (Civil Procedure) Rules, Cap, 52, such judgment could be set-aside on the defendant showing good cause for the summary judgment to be set-aside.

This simple issue was however beclouded when the Court of Appeal adopted and set-out to consider the issue for determination as formulated by the plaintiffs in these terms –

“Whether a defendant who failed to file an affidavit disclosing his defence in answer to Summons for summary judgment under Order X is entitled to have the judgment set aside on the ground that he was unavoidably absent at the hearing of the Summons and also because he in fact had a good or triable defence to the action.”

Looking at the facts of the case from the perspective which I have postulated above, it is clear that in the High Court, the plaintiffs took all the steps necessary to obtain summary judgment. They took out a writ Of summons, which was specially indorsed and accompanied by a Statement of claim as provided under Order 3 rule 4 of High Court of Lagos State (Civil Procedure) Rules Cap. 52, which states-

“4. In any action which in England may be assigned to the Chancery Division or the Queen Bench Division, other than an action which includes-

(a) a claim by the plaintiff for libel, slander, malicious prosecution, false imprisonment, seduction or breach of promise of marriage; or

(b) a claim by the plaintiff, based on an allegation of fraud, the writ of summons may, at the option of the plaintiff, be specifically indorsed with or accompanied by a statement of his claim.”

They next applied to Longe, J. for liberty to enter judgment for the sum of N54,991.00 claimed, by filing an affidavit as laid down by Order 10 rule 1 of the High Court of Lagos State (Civil Procedure) Rules, Cap. 52. As from that stage, the ball was in the defendant’s court. The same Order 10 rule 1 requires the defendant to satisfy the learned Judge by showing that –

“he (it) has a good defence to the action on the merits or shall disclose such facts as may be deemed sufficient to entitle him (it) to defend the action generally.”

And this is to be done as specified by Order 10 rule 3 which reads –

“3(a) The defendant may show cause against such application by affidavit, or the Judge may allow the defendant to be examined upon oath.

(b) The affidavit shall state whether the defence alleged goes to the whole or to part only, and (if so) to what part of the plaintiff’s claim.

(c) The Judge may, if he thinks fit, order the defendant, or in the case of a corporation, any officer thereof, to attend and be examined upon oath, or to produce any leases, deeds, books, or documents, or copies of or extracts therefrom.”

At the time of hearing the plaintiffs’ application under Order 10 rule 1 for liberty to enter judgment the defendant was not represented, nor was any affidavit filed to show cause why the application should not be granted as required under Order 10 rule 1. In other words, the defendant defaulted to take the steps necessary to arrest the application of the plaintiffs being granted. The learned Judge, rightly, in my view, entered summary judgment for the plaintiffs.

The plaintiffs’ application was heard by the High Court on the 25th day of June, 1984. The defendant filed its statement of defence on the same day as the summary judgment and an application on the 27th day of June 1984 that is two days later, asking for leave to set-aside the summary judgment. The affidavit in support of the application stated the reasons for the defendant’s absence in court on the 25th June, 1984 as follows-

“5. That on the 25th day of June, 1984 counsel for the 1st defendant arrived late in court due to the unusual traffic hold-up along Airport Road, Ikeja, on his way to court hence, Judgment was entered against the 1st defendant in default of defence.

6. That the reason for the 1st defendant’s Counsel coming late to Court that morning was not deliberate or intended to show disrespect to the Honourable Court but for the unavoidable traffic hold-up. Moreover the suit was listed as No.4 on the cause list that morning.”

The affidavit further stated that the defendant had a “real defence” to the suit; and had exhibited to it the Statement of defence, which the defendant would rely upon. Paragraphs 3 to 6 of the Statement of Defence, which have been quoted earlier in this judgment, show the nature of the defence, which is a denial that the liquidated sum claimed was ever received by the defendant and that no receipt whatsoever was issued by the defendant in acknowledgment of the liquidated sum claimed by the plaintiffs.

On hearing the defendant’s application, Longe, J. was satisfied that the defendant had shown sufficient intention to defend the action and hence set-aside the summary judgment.

Now there is no provision under Order 10 which enables a Judge to set-aside a summary judgment obtained by a plaintiff. However, there is a provision under Order 24 rule 5 of the High Court of Lagos State (Civil Procedure) Rules Cap. 52 which stipulates that any judgment by default may be set-aside by the Judge that entered the judgment. The rule reads-

“15. Any judgment by default, whether under this Order or under any other of these Rules, may be set-aside by the Court or a Judge in Chambers, upon such terms as to costs or otherwise as such Court or Judge in Chambers may think fit, and where an action has been set down on motion for judgment under rule 11 of this Order, such setting down may be dealt with by the Court or a Judge in Chambers in the same way as if judgment by default had been signed when the case had been set down.”

It seems to me, on the authority of Nishizawa’s case (supra) and Paul Cardoso v. Daniel & Ors. (1986) 2 N.W.L.R. (Pt.20) 1 at 45, that Order 24 rule 15 covers the situation where a summary judgment given under Order 10, as in the present case, may be set-aside. However, the Court of Appeal expressed a different opinion in its judgment as quoted above. It held that a summary judgment under Order 10 is a judgment on the merits and that Order 24 rule 15 –

“should not be taken in isolation from other provisions under Order 24. It must be read and construed in the con of the whole Order which is dealing with the default of pleadings.”

The Court of Appeal also expressed an alternative opinion, which was that if Order 24 rule 15 should apply to rules outside Order 24, then such application would be to a default judgment and not a judgment obtained on merits.

With respect, I do not think the Court of Appeal was right, for the following reasons. It is true that the heading to Order 24 is given as “DEFAULT OF PLEADINGS”, but the heading cannot be used to interpret any of the provisions of Order 24, including rule 15 thereof unless the provisions are found to be ambiguous. This is a trite principle of interpretation of statutes. In R v. Surrey (North-Eastern Area) Assessment Committee, (1948) 1 K.B. 29 Lord Goddard C.J, observed at Pp.32 and 33 as follows-

“But while court is entitled to look at the headings in an Act of Parliament to resolve any doubt they may have as to ambiguous words, the law is quite clear that you cannot use such headings to give a different effect to clear words in the section where there cannot be any doubt as to their ordinary meaning.”

The words that make the provisions of Order 24 rule 15 applicable to the present case are “or under any other of the Rules”. The word “Rules” therein can only apply to other Orders of the High Court of Lagos State (Civil Procedure) Rules, Cap. 52 and Order 10 is one of such Orders. In Spira v. Spira, (1939) 3 All E.R. 924, Order 27 Rule 15 of English Rules of Supreme Court, (which in 1939read exactly like Order 24 rule 15 of the High Court of Lagos State (Civil Procedure) Rules, Cap. 52) was considered by the English Court of Appeal, which appears to suggest that a summary judgment obtained under their Order 14 (which was the same as Order 10 of Lagos State High Court Rules) was not a default judgment and could not therefore be set-aside under their Order 27 rule 15. I think that decision, though persuasive, was reached under the peculiar facts of that case. The plaintiffs in that case, which was for the recovery of money lent, applied under their Order 14 rule 1 for summary judgment. By an accident, the defendants’ solicitor failed to put in any affidavit or appear at the hearing. Judgment was therefore entered against the defendants. The defendants’ solicitor was not aware of the judgment until some days later when the plaintiff’s solicitor wrote him enclosing a copy of the order of the summary judgment. The defendants” solicitor admitted his default to the defendants and suggested to them to appeal. The proper step to be taken was to apply for the judgment to be set-aside, but this was not done. The appeal was not filed but negotiations were entered with the solicitors of the plaintiff with a view of avoiding the necessity of enforcing the summary judgment. The terms of the negotiation were on the basis of the summary judgment. With the negotiation failing, the defendants applied for extension of time to appeal against the summary judgment given by the master. The appeal was heard and was dismissed. It was then that the defendants took step under Order 27 rule 15 to set-aside the summary judgment on the ground that it had been signed on default of appearance to the judgment summons. The master who heard the application refused to grant it on the ground that the procedure was inappropriate and the Judge to whom the decision of the master was appealed against refused to grant it. His reason being that he had no power to set-aside a judgment under Order 14 of the Rules of Supreme Court in proceedings, which complied with the requirements of the Order in that all the necessary evidence was before the Court and there had been no answer to the evidence adduced by the plaintiff.

The defendants appealed to the English Court of Appeal on two grounds, namely –

“(1) That there was a default in regard to the proceedings under Order 14 of the Rules of Supreme Court by reason of the omission of the defendants’ solicitor to take necessary steps to appear at the hearing of the summons; and

(2) That, in the circumstances, the delay was due to the negotiations for a settlement, and that therefore to do substantial justice to the parties, the judgment should be set-aside.”

C In his judgment, dismissing the appeal, Scott, L. J. referred to the following statement by Lord Atkin in Evans v. Bartlam, (1937) A.C. 473; (1937) 2 All E.R. 646-

“The principle obviously is that, unless and until the court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedure.”

and concluded the judgment as follows –

“It seems to me that the plaintiff obtained judgment in strict compliance with the requirements of Order 14, and the fault lies with the defendants for not appealing in time. In so far as they did apply at a later date for an extension of time that was a matter of pure discretion and the Judge acted within his powers. After that, an application was made on other lines of procedure under R.S.C., Order 27, r.15. I think the answer to that was that there had been no such default in the proceedings under R.S. C. Ord. 14, as is contemplated by R.S.C., Ord. 27, r.15, and that the matter is not one in which the discretion of the court should be exercised in favour of the defendants, who had complete knowledge of the situation, but negotiated, and, only when the negotiations ended, took the decision that they would like to vacate the judgment. They were then too late.”

In his own judgment Du Parcq, L. J. remarked thus-

“The Judge was right in the alternative view he took that, assuming he had jurisdiction under R.S.C., Ord. 27, r.15, to set-aside the judgment, he ought not to have done so. Here the defendants found out that judgment had been signed against them in time to appeal against it. They could then have applied to set-aside that judgment. Instead of doing that, they proceeded to negotiate. When there was a breakdown in the negotiations, then they sought to set the judgment aside, but it was very late in the day.”

It is, therefore, clear from the above quotations that the facts that influenced the decision of the English Court of Appeal in Spira’s case are not altogether on all fours with the facts in the present case and the two cases are distinguishable. In the present case the defendant’s solicitor was aware that the summons for judgment had been filed by the plaintiffs and attempted to attend the proceedings but was held-up by traffic. Secondly, soon after the summary judgment was given the defendant filed an application to set it aside. He did not enter into any negotiation to settle the summary judgment as was done in Spira’s case. Thirdly, the difference in procedure ought to be taken into consideration. In England the application under our Order 10 for summary judgment would go before a master and when the master decides, the aggrieved party can appeal to a Judge who could have reversed the decision of the master. In our case although Order 10 rule 1 refers to the application being taken to a Judge in chambers, it is the Judge of the High Court (and not a master and a Judge) that acts in both capacities and could himself, therefore, exercise the power to set-aside the summary judgment.

Furthermore, the summary judgment given in the present case cannot be a judgment on the merits, but a default judgment. What constitutes a judgment on the merits had been defined by Oputa, J.S.C. in Paul Cardoso v. John Bankole Daniel & Ors., (1986) 2 N.W.L.R. (Pt.20) 1 at p.45 where he observed as follows –

“A judgment is said to be on the merits, when it is based on the legal rights of the parties as distinguished from mere matters of practice, procedure, jurisdiction or form. A judgment on the merits is therefore a judgment that determines, on an issue either of law or fact, which party is right.”

Order 10 rule 1 envisages that after the plaintiff applied for liberty to enter judgment, the defendant would show that it had either a good defence or it was in possession of facts, which would entitle it to defend the action generally. There is no doubt that from the facts averred in the statements of defence and the affidavit sworn to in support of the application to set-aside the summary judgment, the defendant disclosed sufficient facts, which would entitle it to defend the action. The facts can only be made available to the learned Judge by their being sworn to in an affidavit by the defendant as required by Order 10 rule 3. It follows that the manner or form, laid down by Order 10, of showing defence 10 the claim, which was open to the defendant, had not been followed although the defendant had a good defence. In that event, can it be said that the summary judgment obtained by the plaintiffs is a judgment on the merits or a default judgment since the defendant missed the opportunity to file the affidavit although he was in possession of facts that would entitle him to defend the action In view of the above dictum of Oputa, J.S.C., I am of the opinion that as far as the defendant is concerned, the summary judgment obtained by the plaintiffs is a default judgment and is, therefore, of the class of default judgments that can be set-aside under Order 24 rule 15.

In Spira’s case (supra) though Du Parcq, L.J. held that absence in court is not default, he appears to accept the view that a summary judgment can be set-aside when it is shown that the defendant failed to appear in court to show cause through no fault of his own. For he observed on p.927 thereof as follows –

“I think that when one looks at the terms of R.S.C., Ord. 27, r. 15, what is contemplated there is a failure to do something that a litigant is directed to do either by R.S.C. Ord. 27, or by one of the other Orders. When one looks at R.S.C., Ord. 14, r.1 far from finding any order that the defendant is to do anything, the rule only says that the Judge can order that the plaintiff should sign judgment –

‘unless the defendant shall satisfy him that he has a good defence to the action on the merits or shall disclose such facts as may be deemed sufficient to entitle him to defend the action generally……..

There is no direction to the defendant. All that is said is that if he does not satisfy the Judge that he has a defence, judgment shall be signed against him. It seems to me conceivable that cases of hardship may arise. There is a special provision for a defendant who fails to appear at the trial, it may be through no fault of his own. In such a case the court can intervene and set-aside the judgment, on terms, although nothing wrong had been done by the plaintiff. ”

For ease of reference Order 27 rule 15of the English Rules of Supreme Court read at the time of the decision in Spira’s case, as follows –

“Any judgment in default, whether under this Order or under any other of these Rules, may be set-aside by the Court or a Judge, upon such terms as to costs or otherwise as such Court or Judge may think fit, and where an action has been set down on motion for judgment under Rule 11 of this Order, such setting down may be dealt with by the Court or a Judge in the same way as if judgment by default had been signed when the case was set down.”

To remove the procedural gap or injustice and anomaly created by the decision in Spira’s case, which was that every judgment in default or a judgment given in the absence of a defendant under Order 14 could not be set-aside, except to be appealed against to a Judge, Order 14 rule 11 was added to the English Rules of Supreme Court in 1962 – See p.161 of Volume 1 of The Supreme Court Annual Practice, 1979 (White Book). The new rule reads –

“14.11 Any judgment given against a party who does not appear at the hearing of an application under Rule 1 or Rule 5 may be set-aside or varied by the Court on such terms as it thinks just.”

In the light of the foregoing, would it be right for our courts to allow themselves to be guided or persuaded by the decision in Spira’s case, which is capable of causing hardship and injustice I think not, since the decision is merely persuasive and not binding on the Courts. To that extent, I am of the opinion that the Court of Appeal was wrong in following the decision in Spira’s case. Furthermore, section 12 of the High Court Law, Cap. 52 provides:

“12. The jurisdiction vested in the High Court shall, so far as practice and procedure are concerned, be exercised in the manner provided by this or any other rules and orders of court as may be made pursuant to this or any other enactment, and in the absence of any such provisions in substantial conformity with the practice and procedure for the time being of the High Court of Justice in England.

Now it has since been settled, in the interpretation of provisions in other Laws that are similar to the above provisions that where there are provisions in the local Rules of Court resort cannot be made to English Rules see Ademola II v. Thomas, 12 W.A.C.A. 81 and Domingo Paul v. F. A. George, 4 F.S.C. 198. However, resort can be made to English Rules, not only where there are no local rules at all but also where the local rules are not as full as they should be on the subjects with which they deal! Laibru Ltd. v. Building and Civil Engineering Contractors, (1962) 1 All N.L.R. 387 at p.392. So that even if the provisions of Order 24 rule 15 of the High Court of Lagos State (Civil Procedure) Rules, Cap. 52 cannot be applied to set-aside a summary judgment obtained under Order 10 of the same Rules, (which I reject) the provisions of Order 14 rule 11 of the English Rules of Supreme Court can be called into aid to set-aside the judgment. The submission of learned Senior Advocate for the respondents that Order 10 of the local Rules is a complete code for summary judgment cannot, with respect, therefore, be correct in view of the provisions of section 12 of the High Court Law, Cap. 52. In Nishizawa Ltd. v. S.N. Jethwani (supra) after the plaintiff filed a motion on notice under Order 10 rule 1 and Order 40 rule 1 of the High Court of Lagos State (Civil Procedure) Rules, Cap. 52, supported with a verifying affidavit, for an order empowering him to enter judgment; the defendant filed a counter-affidavit and a statement of defence, the averments in both of which did not meet the facts deposed to in the plaintiffs affidavit in support of the motion. The trial Judge looked at the statement of defence and held that it raised triable issues. The plaintiff’s application for summary judgment was therefore rejected. It is clear, therefore, that the facts are not on all fours with those of the present case since in the instant case the defendant did not file a counter-affidavit to the plaintiffs’ application for summary judgment, nor did it file a statement of defence before judgment was obtained. However, what is of interest in Nishizawa’s case is the decision of this Court on whether in the proceedings under Order 10 a Judge may look at a statement of defence, irregularly filed by a defendant, in place of affidavit to show cause why the application for summary judgment should not be granted. In considering the appeal before it in the present case, the Court of Appeal was of the opinion that the pronouncements of Aniagolu and Oputa, J.J.S.C. on the issue expressed a minority opinion and that the statement of Obaseki, J.S.C. on Pp.274 to 275 thereof was the better opinion since it was agreed with by the remaining members of the panel of this Court that heard the case, namely Coker and Kawu, J.J.S.C. – that is, the majority of the Court. Chief Debo Akande canvassed that the Court of Appeal was wrong in holding that view, while Chief Williams submitted in the plaintiffs’ brief of argument – “that the decision of the majority is correct and the pronouncements by individual Justices of this Court which do not follow or adhere to the guideline laid down in that case were made per incuriam and should be overruled.”

On careful examination of the pronouncements made by Obaseki, Aniagolu and Oputa J.J.S.C. in Nishizawa’s case it will be seen that there is no inconsistency or conflict in them at all. Their Lordships were in fact stating the same opinion. What Obaseki, J.S.C. stated on pp.274 to 275 thereof referred to by the Court of Appeal is-

“I am not persuaded by the decision of the High Court in the case of Central Bank of Nigeria & Anor. v. National Bank of Nigeria & Anor., (1975) 1 CCHJ 137 that a statement of defence simpliciter filed after service of motion for summary judgment in an action commenced by a writ of summons specially endorsed with or accompanied by a statement of claim is permissible under Order 10 rule 1 and Order 10 rule 3 having regard to the purport of the application. What is required is an affidavit showing the proposed defence to enable the Judge decides whether the respondent should be given leave to defend. Order 10 rule 3 of the High Court of Lagos State Rules is unambiguous and does not create room for the adoption hook, line and sinker, of the interpretation given to Order 14 Rules (1) (sic) and 4 (1) of the English Rules, Rules of the Supreme Court 1965 whose provisions as they stand today are not wholly in pari materia with the Lagos High Court Rules, Order 10 rules (1) (sic) and 3(a). The statement of defence can be allowed in through the door of “or otherwise” appearing in Order 14 rule 4(1) Rules of the Supreme Court, 1965 of the English Rules. There is no such door created by Order 10 rule 3(a) of the Lagos High Court Rules.”

But earlier on at pages 256 to 257 thereof learned Justice had observed as follows-

“When an application for judgment is taken out under Order 10 the defendant ought not to file and serve a statement of defence. See Hobson v. Monks & Anor., 1884 W.N.8. Although I will not go so far as learned appellant’s counsel to say that it is not permissible to file a statement of defence, I will and I do hold that Order 10 does not authorise the filing of a statement of defence in order to show cause against the application for judgment.

The only problem is whether the Judge or court can shut his or its eyes against the statement of defence. The clear answer is that faced with the difficult task of deciding that the defendant has no defence to the action, he cannot shut his eyes against it. This must not be taken as elevating a statement of defence to the requirement of the rule. If the defendant wants to elevate the facts pleaded to that requirement, he must depose to them on oath in an affidavit.”

It was in support of this view that Aniagolu, J.S.C. remarked thus”

In none of his joggling with words, either in the statement of defence he improperly filed, or in the argument of his counsel before the court of first instance or the Court of Appeal, did he meet the case of the plaintiff by a definite answer to the claim. The defendant had clearly not put up a defence, which was a triable issue to the plaintiffs demand on the claim. Had he put up a real defence to the claim I would, certainly, notwithstanding that he might not have come by way of Order 10 rule 3, have granted him leave to defend. His inconvenience to the plaintiff would, in such a case, have been remedied by costs.” And to emphasise the view, Oputa, J.S.C. stated on Pp. 286 to 287 and 292 to 294 as follows –

It is therefore my view that rules of court are made for the attainment of justice with ease, certainty and dispatch will be understood as made in aid of the fundamental objective of the courts to do justice, and consequently, in cases where strict adherence to such rules would clash with this fundamental objective, the courts will adopt a liberal interpretation of those rules. This view is borne out by the recent ruling of this Court in S.C.32/1984 University of Lagos & Ors. v. M. I. Aigoro, (ruling delivered on 11th September, 1984 per Sowemimo, C.J.N. with six other Justices of the Supreme Court concurring).

In other words, the court in the exercise of its primary duty to do justice, can invoke its rather extensive discretionary powers, and look ill the invalid but not void document (statement of defence) and then do what the justice of that particular case demands.”

“Procedure for summary judgment established to prevent an injustice to a deserving plaintiff should not be allowed to become a vehicle for injustice (like the Statute of Frauds) against a deserving defendant. To that end, it is my view that Order 10 rule 1 has not imposed undue limitations on the discretion of the trial Judge as to the materials or documents he will look at to satisfy himself that a defendant has disclosed such facts as may be deemed sufficient to entitle him to defend. Again the interest of justice between the parties demands that when a statement of defence has been filed, though irregularly, the learned trial Judge would not, shut his eyes to the facts alleged therein and in good conscience shut the defendant out on a mere technical point.

In the peculiar circumstances of this case and having regard to the primary fundamental duty of the courts to do substantial justice by deciding not on a mere technicality at the expense of hearing on merit, I hold that the trial Judge was entitled to look at the respondent’s statement of defence (notwithstanding the fact that it was irregularly filed against the letter of Order 10 rule 3 but not the letter or the spirit of Order 10 rule 1) to see if the defendant has therein disclosed a defence on the merits.”

From the foregoing quotations, there is no doubt that the Court of Appeal was under a misconception when it held that the learned Justices did not express the same opinion on whether a trial Judge can look at a statement of defence, irregularly filed, in order to determine if the defendant has good cause why a summary judgment should not be entered under Order 10 rule 1 of the High Court of Lagos State (Civil Procedure) Rules, Cap. 52. Both learned counsel are also wrong in submitting that the alleged inconsistency or conflict existed in the judgments of the learned Justices.

The setting aside of the summary judgment by Longe, J. was made on the ground that the defendant had shown good reason why it should be allowed to defend the action. The next step to be taken by the defendant, therefore, was to file its statement of defence in accordance with Order 18 rule 6 of the High Court of Lagos State (Civil Procedure) Rules, Cap. 52 if it was still within time or if not, to apply for extension of time, so that issues might be joined and the suit determined on its merits. It seems that the appropriate action had been taken by the defendant.

It was for all the foregoing reasons that I agreed on the 5th day of December, 1988 that this appeal succeeded and that it should be allowed with N500.00 costs to the appellant. It was in furtherance of that that I also agreed that the decision of the Court of Appeal should be set-aside and the order that the High Court should expedite the trial before it on pleadings, be made.

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SC.147/1988