U.T.C. (NIG.) LTD v. CHIEF J.P. PAMOTEI & ORS
In The Supreme Court of Nigeria
On Monday, the 6th day of March, 1989
SC.147/1988
JUSTICES
MOHAMMED BELLO Justice of The Supreme Court of Nigeria
ANDREWS OTUTU OBASEKI Justice of The Supreme Court of Nigeria
MUHAMMADU LAWAL UWAIS Justice of The Supreme Court of Nigeria
ADOLPHUS GODWIN KARIBI-WHYTE Justice of The Supreme Court of Nigeria
CHUKWUDIFU AKUNNE OPUTA Justice of The Supreme Court of Nigeria
SALIHU MODIBBO ALFA BELGORE Justice of The Supreme Court of Nigeria
PHILLIP NNAEMEKA-AGU Justice of The Supreme Court of Nigeria
Between
- T. C. (NIG.) LIMITED Appellant(s)
AND
- CHIEF J. P. PAMOTEI
2. JOHN N. ARINZE
3. N.C. EZEKANNAGHA
4. CHRIS OGU
5. ROCKY POOLS LTD. Respondent(s)
RATIO
THE POSITION OF LAW ON WHAT CONSTITUTES A JUDGEMENT ON MERIT
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.” PER UWAIS, J.S.C.
WHETHER OR NOT WHERE THERE ARE PROVISIONS IN THE LOCAL RULES OF COURT RESORT CANNOT BE MADE TO ENGLISH RULES
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. PER UWAIS, J.S.C.
UWAIS, J.S.C.(Delivering The Leading Judgment): 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.
BELLO, C.J.N: I have had a preview of the Reasons for Judgment just delivered by my learned brother, Uwais, J .S.C. I adopt them as mine.
OBASEKI, J.S.C.: I have had the advantage of a preview of the Reasons for Judgment just delivered by my learned brother, Uwais, J.S.C. and I agree with him.
On the 5th day of December, 1988, after hearing counsel for the parties in oral argument and reading the briefs filed by the parties together with the proceedings and judgment of the High Court and the proceedings and judgment of the Court of Appeal, I allowed the appeal, set aside the decision of the Court of Appeal with costs of N500.00 and restored the decision of the learned trial Judge of the High Court granting leave to the appellants to defend the action. We then adjourned the reasons for judgment till today.
The short point in this appeal is whether a judgment entered for the plaintiff under Order 10 rule 1 of the High Court of Lagos State (Civil Procedure) Rules 1973 in the absence of the defendant and without the defendant entering an appearance and filing an affidavit showing that he has a good defence to the action can on a proper application to the High Court or Judge be set-aside. The writ of summons was served. Order 10 Rule 1 reads:
“(a) Where the defendant appears to a writ of summons specially endorsed 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 amount 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 chamfers for liberty to enter judgment for such remedy or relief as upon the statement of claim the plaintiff may be entitled to. The Judge there upon unless the defendant shall satisfy him that he has a good defence to the action of 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.”
Rules 2 and 3 of Order 10 are relevant and they read:
2. The application by the plaintiff for leave to enter final judgment under Rule 1 of this Order shall be made by summons returnable in chambers not less than four clear days after service, accompanied by a copy of the affidavit and exhibits referred to therein.
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 plaintiffs 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 extract therefrom.”
What does the Judge do if the defendant has a good defence Rules 5 and 6 of Order 10 provide the answer. These two Rules read:
“5. If it appears to the judge that any defendant has a good defence to or ought to be permitted to defend the action and that any other defendant has not such defence and ought not to be permitted to defend, the former may be permitted to defend and the plaintiff shall be entitled to enter final judgment against the latter and may issue execution upon such judgment without prejudice to the right to proceed with his action against the former.
6. Leave to defend may be given generally or subject to such terms as to giving security or time or otherwise as the Judge may think fit.”
This is thus a special procedure for obtaining judgment quickly where the defendant has no defence. When the case in the instant appeal came up for hearing of the application for judgment, the defendants, although served with the summons, made no appearance. Judgment was entered for the plaintiff. After judgment was entered, the defendant arrived at the court premises and proceeded to file a defence. The statement of defence was too late to have any effect on the mind of the trial Judge. The defendant then filed a motion for an order setting aside the judgment and granting defendant leave to defend the action. He succeeded and the order setting aside the judgment given in default was set aside and leave granted to the appellants to defend the action.
The plaintiffs appealed to the Court of Appeal and won. In the process, the Court of Appeal held that the judgment delivered in the matter was not a judgment by default but a judgment on the merits and cannot be set aside under Order 24 Rule 15 of the High Court Rules.
Is the judgment obtained under the procedure in Order 10 of the High Court Rules a judgment by default In my opinion, not every judgment obtained under that Order is a judgment by default. This is because a judgment under that Order can only be entered if a defendant has no good defence whether he appears or not at the hearing. Even if he files a defence and the statement of defence is a sham, the court can still enter judgment against the defendant. See Nishizawa Limited v. Jethwani Ltd. (1984) 12 S.C. 234; Harold Sodipo v. Lemminkainen (1986) 1 N.W.L.R. (Pt.15) 220 at 234.
In England, under the English Rules, Order 14 Rule 11 of the Rules of the Supreme Court 1965 makes provision for setting aside judgments obtained under those Rules in pari materia with Order 10 Rule 5. However, section 12 of the High Court Law Cap. 52 Laws of Lagos State 1972 enables the High Court to apply the English Rule. The said section 12 reads:
“The jurisdiction vested in the High Court shall so far be exercised in the-manner provided by this or any other enactment, or by such rules and orders of the 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.”
Order 14 Rule 11 of the Rules of the Supreme Court (see Vol. 1 1976 White Book) reads:
“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.”
Rule 1 of the Order reads:
“(1) where in an action to which this Rule applies a statement of claim has been served on a defendant and that defendant has entered an appearance in the action, the plaintiff may on the ground that that defendant has no defence to a claim included in the writ or to a particular part of such a claim or has no defence to such a claim or part except as to the amount of damages claimed, apply to the court for judgment against the defendant;
(2) subject to paragraph (3), this Rule applies to every action in the Queen’s Bench Division or Chancery Division begun by writ other than one, which includes:
(a) a claim by the plaintiff for libel; slander, malicious prosecution, false imprisonment, seduction or breach of promise:
or
(b) a claim by the plaintiff based on allegation of fraud;
(3) This Order shall not apply to an action to which Order 80 applies. Rule (5) of Order 14 reads:
“Where a defendant to an action ill the Queen’s Bench Division or Chancery Division begun by writ has served a counter-claim on the plaintiff, then, subject to paragraph (3), the defendant may on the ground that the plaintiff has no defence to a claim made in the counter-claim or to a particular part of such a claim apply to the court for judgment against the plaintiff for that claim or part thereof.”
The Court of Appeal was therefore in error to hold that the judgment was on the merits and cannot be set aside. Since the defendant/appellant was absent from court when the application for judgment was considered, he is entitled to have the judgment set aside on giving satisfactory explanation for his absence and that he has a good defence.
It was for the above reasons and those ably set out by my learned brother, Uwais, J.S.C. in his Reasons for Judgment that I allowed the appeal and restored the decision of the learned trial Judge setting aside the judgment and granting leave to the appellant to defend the action.
KARlBI-WHYTE, J.S.C.: On the 5th day of December, 1988, alter argument, I summarily allowed this appeal with N500.00 costs to the Appellants. I indicated that I will give my reasons today, which I state hereunder –
I have read the judgment of my learned brother Uwais, J.S.C. in this appeal. I agree entirely with his reasoning and conclusions. I do not wish to restate the facts so fully stated in his judgment. I shall only confine myself to stating so much of them as are relevant to my consideration of this appeal.
The contentions in this appeal bring into focus the scope and limits of the application for summary judgment under Order 10 of the High Court Rules of Lagos State. The facts of this case summarily stated, as can be gathered from the judgment of the learned trial Judge are that Plaintiffs relying on the provisions of Order 10 of the High Court (Civil Procedure) Rules, on the 9th April, 1984, filed a writ of summons and statement of claim, claiming from the Defendants, the sum of N54,911.00k being money had and received for the delivery of some Motor Vehicles. The defendants appeared by counsel and filed a memorandum of appearance on the 16th May, 1984. The writ of summons and statement of claim were supported by an affidavit. Unfortunately, none of these documents was reproduced in the records of proceedings before us. All we have from the judgment of the learned Judge is as follows-
“I have read all these documents and have listened to their counsel, Mr. M.A. Apampa for the Judgment summons. I am satisfied that this is a 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 N54,911.00k 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 shall carry 6% interest rate until it is paid.”
Judgment was entered for the Plaintiffs pursuant to Order 10 rule 1 of the High Court (Civil Procedure) Rules. Order 10 rule 1 relied upon enables a Plaintiff who has-
(a) Specially endorsed his writ of summons in any action except a claim for (i) libel, slander, malicious prosecution, false imprisonment, seduction or breach of promise of marriage, (ii) a claim based on an allegation of fraud – See Order 3 r.4
(b) accompanied by a statement of his claim (c) filed with this action an affidavit verifying the cause of action and the amount 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.
(d) served the defendant with the summons and affidavit and he had entered appearance to apply by summons returnable not less than four clear days after service, with all the documents prescribed attached to enter summary judgment upon the statement of claim as he may be entitled without the necessity of a trial. This he can do where the Defendant has unconditionally entered appearance to the action – See Order 10 r.1 (a) – See Sodipo v. Lemminkainen Oy (1986) 1 N.W.L.R. (Pt.15) 220. However, where the Defendant is able to show that
(a) he has a good defence to the action on the merits, or – See Order 10 r.5
(b) to disclose sufficient facts to entitle him to defend the action
(c) the claim is not one which could be specially endorsed under Order 3 r.4 – See Order 10 r.(1)(b) the Court may with respect to (c) suo motu amend the indorsement by striking out the claim, or may deal with the claim as if no other claim had been included in the indorsement, and allow the action to proceed – See Sodipo v. Jemminkainen Oy (1986) 1 N.W.L.R. (Pt.15) 220. The defendant is entitled to show cause why judgment should not be entered against him either by affidavit, or with the leave of the Judge by examination on oath – See Order 10 r.3.
Although the Defendant entered unconditional appearance to the specially indorsed writ of summons, served on him with the statement of claim, and the verifying affidavit he did not show cause by affidavit why judgment should not be entered against him as sworn to in the Plaintiff’s affidavit. The learned Judge therefore entered judgment as claimed on the 25th June, 1984. On the 27th June, 1984 Defendants applied by motion relying on Order 24 r.15, supported by an affidavit and a proposed statement of defence to set aside the judgment. This was probably because there is no provision in Order 10 for the setting aside of summary judgment under that Order.
Paragraphs 7 and 8 of the affidavit sworn to on the 27th June averred as follows-
“7. That the 1st Defendant has a real defence to the suit and that 1st Defendant’s Statement of Defence is herewith attached and marked Exhibit “B”
“8. That in view of the defence filed and the triable issues raised therein there is need to hear the matter on merit.”
These averments do not satisfy the provisions of Order 10 r.3 (a) which require the affidavit to show a good defence. Defendant is here contending that judgment should not he entered for plaintiff without trial since there is a defence against the claim. But it is obvious that there was no defence before the Judge either on affidavit or in any manner of the time judgment was entered. The claim was exhibited. The reasons why defendant failed to file, the defence was stated in paragraphs 3. 4. 5. 6 of the supporting affidavit as follows –
“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.”
These averments clearly show that the fault both for not filing a defence and for coming late to Court on the 25th June, 1984, were those of counsel to the 1st defendant. The motion was fixed for hearing before the same Judge on the 9th July, 1984. On the 4th July, 1984, the 2nd Plaintiff, John Nwoye Arinze, swore to a counter affidavit, which did not appear to answer any of the above averments. On the 9th July, 1984, Longe, J., heard the application and gave a ruling granting it. After correctly stating the rationale of the provisions of Order 10 governing the entering of summary judgment, and the circumstances enabling a Judge to set aside a judgment entered in such circumstances, he conceded that applicants were late in bringing their application, but held that “what is necessary to look for is whether or not there is intention or step taken to show they have intention to defend.” He held that there has not been too much delay on the part of the applicant in bringing the application to be allowed to be heard on the merits. The learned Judge also considered the fact that Plaintiffs and their counsel have nothing to fear or lose if the action were to be heard on its merits. He held that the expense to which they have been put will be adequately compensated by the award of costs. In selling aside his judgment given on the 25th June, 1984, he held that Order 24 r.15 provided also for the selling aside of judgments obtained under Order 10; and that “the course of equity would be properly served if the application is granted although with cost.”
Plaintiff appealed against this ruling to the Court of Appeal. The grounds of appeal are not included in the record of proceedings before us. The question for determination as disclosed in the judgment of the Court of Appeal as was adopted by the Court below 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 that he was inavoidably absent at the hearing of the summons and also because he in fact had a good or triable defence to the action.”
In a considered judgment, the ruling of the learned Judge setting aside his summary judgment entered by virtue of Order 10 of the High Court (Civil Procedure) Rules was itself set aside.
The Court of Appeal took the view that the question before the learned Judge was not one for the exercise of discretion, but whether he had jurisdiction to exercise the discretion, to set aside his own judgment entered by virtue of Order 10. The Court of Appeal held the view that Order 10 rule 3(a) prescribed the filing of an affidavit, which should disclose a defence. It is not the filing of a proposed defence as was done in the instant case. It was therefore held that the proposed defence filed by the defendant/respondent after summary judgment had been signed was accordingly irrelevant. It would also be irrelevant even if filed before the signing of summary judgment. It seems to me that in other words, the Court of Appeal was saying that a proper statement of defence filed in answer to a statement of claim supported by an affidavit that the defendant has no defence in compliance with Order 10 will be irrelevant for a consideration whether the defendant has a defence to whether Plaintiff is entitled to summary judgment. I shall elaborate on this later in this judgment.
The Court of Appeal stated that the real question was whether a judgment obtained under Order 10 can be set aside under Order 24 rule 15 relating to default pleadings. The Court held that a judgment entered under Order 10 is not a default judgment but a judgment on the merits. Ademola, J.C.A. expressed it in the following words –
“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 a situation, the judgment so obtained in my opinion is a judgment on merits and not on default of pleadings.”
The judgment of this Court in Bank of the North v. Intra Bank (1969) 1 All N.L.R. 91 was cited in support. Again, the Court of Appeal held that Order 241.15 is not applicable to judgments entered under Order 10, For this proposition, the Court relied on Spira v. Spira (1939) 3 All E.R.924.It was held that Order 24 r. 15 applied only to default judgments and not to judgments obtained on the merits.
The Defendants/Respondents appealed to this Court on the following four grounds of appeal –
(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: 52 of the Laws of Lagos State 1972 when it held that a defence filed after the entry of judgment is of no effect even if it raises triable issues and/or a good defence.
(ii) The Court of Appeal erred in law in its decision that under Order to only 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 Nishizawa Ltd. v. Jethwani (1984) 12 S.C. p.234 at 284-285 when it ignored the reasonings of Aniagolu, J.S.C. and Oputa, J.S.C. and that of Eso, J.S.C , in the case of R.O. Sodipo v. Lemminkainen (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.”
Counsel to the parties filed and exchanged their briefs of argument in this appeal. Both relied on their briefs in argument before us. The issues for determination were formulated differently although in substance they all came to the resolution of the same issue. Counsel for the appellant’s formulation is remarkable for its prolixity, whereas counsel for the Respondents’ formulation is misleading for its brevity. For ease of reference, I reproduce both.
Appellant’s issues for determination;
(a) whether judgment obtained under Order 10 of High Court of Lagos State (Civil Procedure) Rules is a judgment on merit or a default judgment.
(b) whether in proceedings under Order 10 a trial Court can close his eyes against a statement of defence which raises triable issues filed by the Respondent 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 the defence which raises triable issues.
Respondents’ issue for determination;
“whether in an application for summary judgment under Order 10 of the High Court of Lagos (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.”
I think (b) in Appellant’s formulation of the issues for determination is superfluous since the contentions before us is whether the judgment obtained by virtue of Order 10 is a judgment on its merits or a default judgment, and whether the learned trial Judge was right in the exercise of his discretion to set it aside on facts which came to his knowledge subsequently.
On the facts, Respondents’ formulation has ignored the pertinent fact that appellant is seeking an order to set aside the judgment already entered against him and to be allowed to enter a defence, not by affidavit, but by the filing of a statement of defence. Thus, the issues to be determined should relate to the nature of the judgment entered against him under Order 10 r. 1, and the exercise of jurisdiction by the learned Judge to set it aside. Respondents’ formulation is therefore to this extent inadequate to cover the issues that fall for determination in this appeal.
I think the crux of the issues lies in the applicability vel non of Order 24 r. 15 to the judgment entered by virtue of Order 10. It was submitted by the appellant that Order 24 r. 15 was applicable since the judgment entered against him was a default judgment, capable of being set aside by the learned Judge and not a judgment on the merits, which can only be set aside on appeal. Counsel submitted that Spira v. Spira relied upon by the Respondents that the judgment is one on the merits does not support the contention. Counsel cited the views of Scott and Du Parcq, L.JJ., in the Court of Appeal B in Evans v. Bartlam (1937) 2 All E. R. 646, that “unless and until the Court has pronounced a judgment upon the merits or by consents, 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.”
It was submitted that in Evans v. Bartlam (supra) the effect of absence of the defendant on summary judgment was left open and was not decided. The facts of Spira v. Spira being different, and since there was no delay in this case, in bringing the application to set aside the judgment the considerations applicable would be different. It was submitted that since appellant did not file an affidavit as prescribed by Order 10 r.3 showing cause at the time of entry of judgment why judgment should not be entered, there was a default in complying with Order 10 rules 1, 2, and 3 and Order 24 r.15 is therefore applicable. The Court of Appeal was therefore wrong to hold the contrary.
The other issue is whether the learned trial Judge was right in setting aside his earlier judgment and letting in the defence, which raises a triable issue. It was the contention of learned Senior Counsel for the Respondents that the learned Judge was not entitled to pay any regard to facts pleaded in a statement of defence unless this was verified or proved by affidavit evidence. He was therefore wrong to have relied on the proposed statement of defence in setting aside a judgment properly entered in compliance with Order 10 r.1. This was also the view of the Court of Appeal. Chief Debo Akande, S.A.N. learned Senior Counsel for the Respondents submitted and I agree with him, that the Supreme Court would rather not allow technicalities to defeat justice and will let in a defence filed by the defendant as was in this case. – He relied on U. B.A. Ltd. & Ors. v. Dike Nwora (1978) 11-12 S.C.1. Chief Debo Akande, S.A.N. referred to the case of Nishizawa v. Jethwani, (supra) and to the various dicta in the judgments, and submitted that the Court of Appeal was wrong to hold that the reasoning in the dicta of Aniagolu and Oputa, J.J.S.C. were in conflict with that of Obaseki, J.S.C. It was submitted that the trial Judge had the jurisdiction to exercise his discretion to set aside his judgment and grant extension of time to let in the statement of defence after being satisfied that it raised triable issues.
Learned Senior Counsel referred to the Jethwani case, and observed that clarification was needed to reconcile the conclusion reached in the lead judgment of Obaseki. J.S.C. to which Coker and Kawu, J.J.S.C. concurred without expressing their opinion, with the opinions expressed by Aniagolu and Oputa, J.J.S.C. Finally, Chief Debo-Akande referred to the dictum of Lord Selborne L.C. in Gibbings v. Strong (1884) 26 Ch.D. 66, approved and adopted by Fatayi-Williams, J.S.C. in U.B.A. Ltd. v. Nwora (1978) 11-12 SC.1. In Gibbillgs v. Strong (supra) Lord Selborne said,
… and if a defence has been put in, though irregularly, I think the Court would do right in attending to what it contains …. If, on the other hand, it discloses a substantial ground of defence, the court will not take the circuitous course of giving a judgment without regard to it, and obliging the Defendant to apply, under Order 14, to have that judgment set aside on term, but will take steps to have the case properly tried on the merits.
It is important to appreciate the fundamental and elementary fact that Appellant did not file an affidavit as required by rule 3(a) of Order 10, showing cause that he had a good defence to the action or ask the Judge to be examined upon oath in respect of the claim before the learned Judge entered summary judgment in the case. Thus, although the Defendant entered unconditional appearance to the action he did not comply with the provisions of Order 10 rule 3(a) which prescribes what he ought to do if he was to stop plaintiff in a specially indorsed claim to enter judgment when he has a good defence.
It seems to me fairly clear from Order 10 r.3 that the rules contemplate the showing of cause in the manner prescribed before the entry of judgment pursuant to rule 1. As is clearly stated in Order 10 r. 1, the Plaintiff will be entitled to 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 ….”
A defendant whose affidavit or oral examination by the Judge does not disclose that he has a good defence to the action on the merits or disclose sufficient facts to entitle him to defend the action generally will fail to stop the Plaintiff from entering summary judgment. – See Nishizawa v. Jethwani (supra). On the other hand, the claim of the plaintiff must be such that the Defendant has no defence. Having stopped the Plaintiff from entering judgment, the defendant then requires leave to defend in accordance with Order 10 r.5. It is after leave has been granted that he is authorised to file a defence.
The problem arises where as in this case, the defendant who has a good defence has failed to comply with the provisions of Order 10 r.3, but has gone along to file a proposed statement of defence without leave. Counsel to the Respondents has submitted that a judgment entered under Order 10 is a judgment on the merits in respect of which the trial Judge no longer had the jurisdiction to set it aside. Thus being functus officio the only remedy lies in an appeal to a higher Court. Appellant’s contention is that a judgment entered before defendant had filed a defence is a judgment in default of compliance with the rules prescribed for making a defence. Accordingly it is not a judgment on the merits and the trial Judge still had the jurisdiction to exercise his discretion in appropriate cases to set it aside, especially here, where there has been a failure to follow the rules of procedure to set it aside in the interest of justice. These technical arguments really becloud the issues of justice in the case, namely the right of a defendant who has a defence to make it.
The word default which qualifies the noun “judgment” as used in this appeal seems to me to mean a judgment obtained by a Plaintiff in reliance on some omission on the part of the defendant in respect of something, which he is directed to do by the rules. The word is used very widely to signify situations where a person has omitted to do what he is required to do having regard to the law governing his actions to the relations he occupies. In ordinary parlance, it means not doing what is reasonable in the circumstances. It is hardly contestable that Plaintiff entered summary Judgment, In this case, because the defendant did not comply with the provisions of Order 10 r.3 (a). 1 think it is legitimate to postulate that in the cases where the provisions of Order 10 have been complied with by both parties filing their affidavits in support of the claim or the defendant not showing in the affidavit filed, a good defence, judgment delivered after satisfying the provisions of Order 10 is clearly a judgment on the merits. This is because both parties have stated their case. What constitutes a judgment on the merits was defined by Oputa, J.S.C. in Cardoso v. Daniel & Ors. (1986) 2 N.W.L.R. (Pt.20) 1 at p.45 where he said;
“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.”
I adopt this definition. It is accepted that the proceedings established under Order 10 is designed for and intended only to apply to straight-forward cases where there can be no reasonable doubt that a Plaintiff is entitled to judgment and where it is inexpedient to allow a defendant to defend for mere purposes of delay. – See Jones v. Stone (1894) A.C. 122 at p.I24. Hence where the defendant is able to show that he has a good defence or that the claim cannot be decided without going into trial, judgment cannot be entered for Plaintiff in the manner indorsed on the summons. – See Order 10 r.5, 8(a). It is obvious that the action in this case was decided on the failure of defendant to comply with the practice and procedure applicable. It was not based on the legal rights of the parties and can therefore not be a determination on the merits. It is a default judgment.
I now advert to the contention that a statement of defence filed in answer to the statement of claim of the Plaintiff and affidavit in support of a specially indorsed writ of summons ought to be ignored as irrelevant and not in compliance with Order 10 r.3 (a). The rationale of the Order 10 procedure is for straight-forward cases which are legally incontestable and to enable seed trial of claims which in law ought not be contested because the legal situation is too clear to allow a defence. It is also designed to discourage unmeritorious claims, or spurious defences. Where instead of an affidavit, a statement of defence is filed it as been held in Nishizawa v. Jethwani (supra) that there is still non-compliance with Order 10 r.3 (a). The situation is different where the statement of defence and verifying affidavit are filed by the defendant as was done in S.C.D.C.C. Ltd. v. Katonecrest Ltd. (1986) 5 N.W.L.R. (Pt.44) 191. In such a case there is compliance with the rules. It is conceded that to hold tightly to the words of Order 10 r.3 (a) is a strict observance of the rules, but such inflexibility in the absence of clear words is like returning to the period of the formulary system in England when the forms and not the substance of the action was the conclusive consideration. In United Australia Ltd. v. Barclays Bank Ltd. (1941) AC. 1 at p.29 Lord Atkin has cautioned against such approach in actions, which have a tendency to be governed by the form rather than the substance when he said, “when these ghosts of the past stand in the path of justice clanking their medieval claims, the proper course for the Judge is to pass through them undeterred.” This court would appear to have adopted this approach in many cases. This court has not allowed mere form to deter it in its path of doing justice between parties before it. – See U.B.A. Ltd. v. Dike Nwora (1978) 11-12 S.C. 1. But the ghosts that haunt us now are modern, and not past. Where a statement of defence alone, which discloses a valid defence instead of an affidavit as prescribed under rule 3(a) of Order 10, has been filed, the court ought to act on such a defence and let in the defendant to defend the action. This is because all that the rule requires is a good defence to the action. Whether this good defence has been made through a statement of defence or by an affidavit would appear in effect to be immaterial. I am not unaware of the fact that the purpose of the rules is to enable the defendant to file a defence after leave has been granted and accordingly Order 10 does not envisage the filing of statement of defence until defendant has established a good defence by affidavit to the action. But this is a complete negation of the principle of speedy dispatch of cases. The position is however different where defendant who has a defence has defaulted in filing any but in his application to set aside the judgment files a statement of defence which is not in compliance with Order 10 r.3 (a). The question is whether such application should also comply with the provisions of Order 10 rule 3 (a). I think not. Stricto sensu, Rule 3(a) does not prohibit showing cause except by affidavit although this is the usual manner of doing so. It also does not disapprove filing a statement of defence.
It is now necessary to consider whether the provision of Order 24 r.15 governs applications under Order 10. Order 24 r.15 provides as follows –
“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 in motion for judgment under rule 11 of this Order, such selling 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 was set down.”
It is clear from the opening words of rule 15 of Order 24 italicised that the scope of the application of the rule extends to “Any judgment by default and any other of these Rules of the High Court of Lagos State (Civil Procedure) Rules Cap. 52 and enables the court or judge to set aside judgment entered in default, upon such terms as to costs as he may think fit. It seems not to have been appreciated that the Rules enabling entry of summary judgment are limited to the cases where the application before the Judge entitles the Plaintiff to that remedy, i.e. where there is no room for doubt of the liability of the defendant. The moment the rules cease to apply because summary judgment could not be entered even on the ground that there is default on the part of the defendant, such as that he was not heard or because that there was a good defence or a triable issue, or where a difficult question of law is invoked enabling him to defend; Order 10 ceases to be applicable. In all cases where the defendant has shown he has a bona fide defence, Order 10 procedure ceases to be applicable. In Sodipo v. Lemmikainen Oy (supra) Eso, J.S.C. has stated that “If a defendant is served with a writ and a statement of claim, and he enters appearance to the action, having read the affidavit that he has no defence to the action, yet he files no defence, he cannot be seen to complain later that he has not had a fair trial.”
This may well be the situation where the complaint is the absence of fair trial. Where the issue is one of judgment entered in default of defence, which is a question of fact, it is hardly arguable that this can be raised under Order 24 r.15, and the judgment set aside on good defence shown.
The Court of Appeal held the view that rule 15 of Order 24 should be limited to the rule relating to default of pleadings as the head note suggests. It should not be extended beyond that rule. It was further argued that if the rule were to be extended it should be limited to default judgments.
The Court of Appeal seems to me to have adopted a very narrow interpretation of the provision. I have already stated that the expression “Any judgment by default” in ordinary connotation extends to any other of these rules, and is not limited to the rules under Order 24. Generally the meaning and scope of the content of a statutory provision is not to be determined by the heading or even the marginal note, unless where the provision is ambiguous. In any event they cannot control the plain words of the statute, or give different effect to clear words where there can be no doubt as to their ordinary meaning – See R v. Surrey Assessment Committee (1948) 1 K .B. 29 at p. 32. The word “rule” in Order 24 r.15 not being ambiguous, should be given its ordinary meaning; and if so construed is applicable to all the rules under the High Court (Civil Procedure) Rules.
Chief Williams has cited and relied on Spira v. Spira (supra) as authority for the proposition that a summary judgment under Order 14 similar to our Order 10 in this case is a judgment on the merits and not a default judgment and therefore could not be set aside under Order 27 r.15 of R.S.C. in England. Without going into details of the peculiar facts of that case, it is sufficient to say that in that case as in the Nishizawa Ltd. v. S. N. Jethwani (1984) 12 S.C. 234 the court found that there was no merit in the defence put forward by the defendant. It is therefore not even persuasive in my consideration of this appeal.
This brings me to the reasons for the exercise of discretion by the learned Judge. The application to set aside the judgment must be by motion supported by an affidavit where necessary which clearly discloses reasons for the application. In addition, the proposed defence must be exhibited with the affidavit and must disclose a good defence to the action. The application to set aside the judgment was made by motion on notice to the Plaintiffs.
I have already in this judgment reproduced the averments relied upon by the Appellant in his affidavit in support of his application to set aside the judgment. In addition paragraphs 1, 3, 5, 7, 8 and 9 of the proposed statement of defence aver as follows –
“1. The 1st Defendant Company is a limited liability company registered under the Companies Acts,
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.
5. The 1st Defendant states that no U.T.C. receipt had been issued to any of the Plaintiffs at any time.
7. The Motors Division of the 1st Defendant Company issues receipts to all customers who deposit money with it through the Cashier and no other person.
8. The 1st Defendant avers in further answer to paragraph 7 of statement of claim that only the Cashier is authorised to receive any money or cheque on its behalf for the delivery of any car or goods and only the said Cashier can issue the company’s receipts whereas the receipts referred to by the plaintiffs.
9. In answer to paragraph 8 of the statement of claim the 1st Defendant states that it received a letter dated 28th November, 1984 from the plaintiffs’ Solicitor but deny liability and states that all the monies referred to in the claim were paid to the 2nd Defendant when the plaintiffs knew or ought to have known that the 2nd Defendant is not the Cashier and was never in the Cashier’s cage when they allegedly paid to him.”
There is no doubt that these averments in the proposed statement of defence raise substantial issues the resolution of which against the defendant on issue joined can render the defendant liable.
It seems to me that the considerations which the learned Judge relied upon in the exercise of his discretion to set aside his summary judgment entered in default were as stated in his ruling, that:
(a) The motion for leave to file a defence was filed at exactly 9.34 a.m. on the 25th June, 1984 when the summary judgment was entered against applicant/appellant, accordingly. Although the applicant was late in bringing the application, he was satisfied there was intention or step taken to show they have intention to defend; and there has not been any delay.
(b) Plaintiffs have nothing to lose if the action were tried on its merits.
(c) Plaintiffs can be adequately compensated in costs for their expense.
(d) The course of equity would be properly served if the application was granted but with costs.
I think these are proper reasons based on the averments in the affidavit and statement of defence already reproduced, on which the learned Judge could rely for the exercise of his discretion. It is obvious that this case is different from Spira v. Spira (supra) where the defendant did not act timely but brought application only after negotiations to compromise broke down. Again, it is different from Nishizawa v. Jethwani (supra) where there was no good defence shown. The only defects in this case were that the defence was not filed before the summary judgment was entered, and that the application was to file a statement of defence rather than an affidavit raising a good defence. I think where a defendant has brought his application under Order 24 r. 15 to set aside a summary judgment entered under Order 10 r.1, it is permissible to file a statement of defence, which discloses a good defence to the action. It is not an affidavit which discloses a good defence under Order 10 r.3(a), but it is a defence to the claim which shows that summary judgment ought not to have been entered. This is because the provisions of Order 24 r.15 do not prescribe the same requirements as Order 10 r.3(a). There is no rule of Order 24, which requires defendant to file an affidavit in his defence instead of a statement of defence. Applicant is no longer required to comply with Order 10, which is no longer applicable to the case.
It is important to observe that Longe J. of the High Court of Lagos State was satisfied on the materials before him and the averments in the supporting affidavit that it was inequitable to allow the judgment entered in those circumstances, i.e. in default of defence, to bind the defendant. He was satisfied that the judgment sought to be set aside was not a judgment pronounced upon the merits, having been obtained by virtue of a failure by the defendant to follow the rules of procedure. I agree with the decision of Longe J., that the defendant had shown good reason why he should be allowed to defend the action. The consequence of a contrary decision is to deprive the defendant of the opportunity of putting forward his defence, at this stage, which is available, when he is ready and willing to do so. It is a well-established principle that the duty of the Court is to decide the rights of the parties and not to punish them for errors, if any, in the conduct of their case by deciding otherwise than in accordance with their rights. Hence where the defendant has a good defence, and is willing and ready to defend the action, it is clearly inequitable to shut him out by technical rules relating to the form in which the defence has been brought. The rules are designed to assist the parties in putting forward their case before the Court. They are not intended to deny parties of the opportunity of presenting their case thereby resulting in injustice.
The next action by the defendant is to file his statement of defence in accordance with Order 18 r.6 of the High Court (Civil Procedure) Rules, Cap. 52 of Lagos State. If he is out of time to apply for extension of time to do so. I will end this judgment by responding to the invitation by counsel for the Appellant to what he regarded as conflicts in the lead judgments, of the majority and of the minority in Nishizawa Ltd. v. leihwani (supra) casting doubts as to the correct position where an intention to defend was made by a statement of defence rather than by an affidavit disclosing a good defence as required in Order 10 rule 3(a) of the High Court (Civil Procedure) Rules Cap. 52. It was submitted that whereas Obaseki, J.S.C. with which Coker and Kawu, J.J.S.C. agreed, were of the opinion that only an affidavit disclosing a good defence which is in compliance with Order 10 rule 3(a) was acceptable, Amagolu and Oputa, J.J.S.C. were prepared to let in a good defence disclosed in a statement of defence filed in defence of an application to enter summary judgment under Order 10 r.1.
I think the dictum in the lead judgment of Obaseki, J .S.C. construed as in conflict is the opinion that it is not authorised by the rules to file a statement of defence in order to show cause against an application to enter summary judgment. This proposition dominated the reasoning in the judgment.
The judgment surely stated that the failure to file an affidavit disclosing a good defence weakens the position of the defendant in his ability to satisfy the Judge or Court that he has a good defence. I think the showing of a food defence by means of a statement of defence is not prohibited either. The requirement of the filing of an affidavit for the purpose does not necessarily prohibit the use of a statement of defence for the purpose. It is not disapproval. The judgments however in varying degrees of emphasis agree that a statement of defence filed even if irregularity, was entitled to the attention of the Judge exercising his discretion to allow defendant to defend the claim. All the judgments are unanimous in the opinion that the statement of defence filed by the Respondent in Nishizawa Ltd. v. Jethwanii (supra) was on the merit incapable of amounting to a good defence and therefore cannot be relied upon for the grant of leave. Obaseki, J.S.C, in his conclusion came out clearly in support of considering a statement of defence irregularly filed. After stating that the statement of defence was incapable of amounting to a good defence, he declared –
“This Court is in as good a position as the High Court in this application and having considered the statement of defence in the interest of justice. I find that it does not amount to a good defence on the merits.”
Aniagolu, J.S.C. was more emphatic when he said at p.280:
The defendant had clearly 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, not withstanding 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.”
Then came the true reason for allowing the appeal when he said, at p.280-281
“I am allowing this appeal because there was no defence to the claim disclosed by the defendant.”
Oputa, J.S.C. equally emphatic and unequivocal held that the learned trial Judge even irrespective of Order 10 rule I had a duty to look at a statement of defence before him even though it was irregularly filed. He then went on to hold that:
“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 the merits, I hold that the trial Judge was entitled to look at the respondent’s statement of defence (notwithstanding that it was irregularly filed against the letter of Order 10 rule 3 but “at the letter or spirit of Order 10 rule 1) to see if the defendant/respondent has therein disclosed a defence On the merits.”
Furthermore, like Aniagolu J.S.C., Oputa J.S.C. held that the statement of defence did not disclose any defence to the action. He said, at p.297-298:
“I have gone through that statement of defence of the respondent. I have read the guarantee he signed. I have studied the confirmation letter also signed by the respondent. From all those, it is as clear to me as crystal that the statement of defence filed in this case does not disclose any defence at all, let alone a defence on the merits.
He then went on to conclude that the learned Judge “should have been driven to the conclusion that the defendant/respondent has not disclosed a defence on the merits,” and said at p.300
“I should therefore on this second point allow this appeal and set aside the ruling of the Court of first instance and the judgment of the Court below granting the defendant/respondent unconditional leave to defend because there is nothing amounting to a defence on the merits.”
On his part Obasdi J .S.C. commenting on the exercise by the learned trial Judge of his discretion to grant leave to defend stated as follows at p.272
“It appears to me that the learned Judge, Bada J., did not advert his mind to these material facts contained in the documents exhibited along with the affidavit otherwise he would have without hesitation held that the statement of defence is a sham defence and offers no material on which to grant leave.”
It is clear from the above dicta that all the judgments are agreed that a Judge considering an application under Order 10 rule 3 is not precluded from looking at a statement of defence filed even if in contravention of the rule, and is required to rely on it where it has raised a good defence against the application by Plaintiff to enter summary judgment under Order 10 rule 1. The Court of Appeal and indeed learned Senior Counsel also, was in error to assume that there are conflicting opinions in the judgment of this Court in Nishizawa v. Jethwani (supra) on the issue whether a trial Judge can look at a statement of defence irregularly filed in determining whether a defendant has shown a good defence why summary judgment has not been entered against him under Order 10 rule 1.
The Jethwani case clearly held that Respondent having not established a good defence ought not to have been let in to defend.
It was for the above reasons and for the much fuller reasons in the judgment of my learned brother Uwais, J.S.C. which I agree with that I allowed this appeal, set aside the judgment of the Court of Appeal, and restored the order of the High Court.
OPUTA, J.S.C.: This appeal came up for hearing on the 5th day of December, 1988. After listening to counsel on both sides in elaboration of the various issues agitated in their respective Briefs of Argument, I allowed the appeal, set aside the judgment of the Court of Appeal Lagos Division and restored the judgment of the trial Judge, Longe, J. dated 9th July, 1984. I then reserved my reasons for judgment to today, the 3rd day of March 1989.
Hereunder are those reasons.
I have, however, in the interval had the privilege of a preview in draft of the Lead Reasons for Judgment just delivered by my learned brother Uwais, J.S.C. and as his reasons agree with mine, I adopt them as my own. Two issues inter alia deserve some additional comments:-
1. When an issue has been decided by the Supreme Court, is it permissible to relitigate and agitate anew that issue in the Court of Appeal with a view to arriving there, at another decision not in keeping with the previous decision of the Supreme Court
2. Can a judgment obtained under Order 10 procedure of the Lagos State Civil Procedure Rules for failure to file an affidavit to show cause be regarded as a judgment in default, or a judgment on the merits, especially where the Defendant had filed a Statement of Defence setting out his defence to the Plaintiff’s claim
It may be necessary to set out the facts, which are not in dispute.
The Plaintiffs now Respondents on the 9th April, 1984 filed their Writ of Summons accompanied by their Statement of Claim as required by Order 7 Rule 4 of the High Court of Lagos State Civil Procedure Rules claiming from the Defendant the sum of N54,911.00 being money had and received by the Defendant for the delivery of some motor vehicles. The Defendant/company (now Appellant) entered an appearance on 16th May, 1984. The Plaintiffs later filed an application for summary judgment under Order 10 Rule 1 of the Lagos State High Court (Civil Procedure) Rules. This application was granted on the 25th June, 1984. On the very same 25th June, 1984, the Defendant filed a motion for an extension of time to file its Statement of Defence. Following this, the Defendant then brought a motion under Order 24 Rule 15 of the High Court of Lagos State (Civil Procedure) Rules “for leave to set aside the judgment obtained by the Plaintiffs … and let in the defence filed with the motion for extension of time.” This application was granted. This means that the judgment delivered by the learned trial Judge, E.F. Longe J., on 25th May, 1984 had been set aside.
What went on appeal to the Court of Appeal Lagos Division was the Ruling of Longe J., dated 9th July, 1984. In that Ruling, the learned trial Judge held inter alia:-
“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 … Thus, if there are sufficient grounds given, a judgment summarily given can be set aside in the interest of justice. Underlined in this provision is the fact that a judgment heard on its merits serves a better chance to convince a reasonable man that justice had been done than one obtained by summary judgment even though the Rules support such step.
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 … the discretion is finally that of the Court whether to grant or refuse the Order to set aside. ….I believe the course of equity would be properly served if the application is granted although with cost. 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 the trial”.
It is obvious that Longe J., regarded the question of setting aside his earlier judgment under Order 10 Rule I of the Lagos State High Court Rules and ordering a trial of the case on the merits of the Statement of Claim and the Statement of Defence as a question of discretion. Was he right or was he wrong If he was right, was his discretion properly exercised judicially and judiciously These were some of the main issues that the Court of Appeal was called upon to decide. Instead of facing the real issue in the appeal, the Court of Appeal drafted its own issue, which, with the greatest respect, did not appear to arise directly but incidentally from the Ruling appealed against.
The Court of Appeal made no mistake at all about what the appeal was all about, for it observed:-
“Longe J. granted the application and ordered that the summary judgment be set aside and the case be tried on the pleadings. This appeal is from the aforesaid Order of the learned trial Judge.”
The appeal was definitely not against the judgment that was set aside (which incidentally was in favour of the Plaintiffs) but against the Ruling of Longe J., who in his discretion set aside his earlier judgment for the Plaintiffs and ordered that the case be tried on the merits. Viewed from this angle, the Issue for determination as formulated by the Court of Appeal viz
“The Question for Determination in this Appeal may be stated as follows:-
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 summons and also because he in fact had a good or triable defence to the action.” seems to be begging the main question and the issue – namely whether the discretion of Longe J. was properly exercised
In the Respondent’s Brief the Question for Determination was formulated as follows:-
“Whether in an application for summary judgment under Order 10 of the High Court of Lagos (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.”
That Brief ended on this note:
“4 – Conclusion
In conclusion the Respondent submits that the decision on the majority of the members of this Court in Nishizawa Case is correct and that 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 over-ruled.”
This same issue was taken up in the Court of Appeal which decided that the Supreme Court judgment in Nishizawa Ltd. v. Jethwani (1984) 12 S.C. 234 was a split decision of 3 to 2. The Court of Appeal preferred the decision of the “majority” and Ademola, J.C.A. who wrote the lead judgment said inter alia at p.19 of his judgment:-
“I do not think it would be right, with respect, to rely on what Aniagolu and Oputa, J.S.C. said in Jethwani case as correctly interpreting Order 10 Rule 3(a) of Lagos State Civil Procedure Rules. The better view is as contained in Obaseki, J .S.C’s 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.”
Following the above comments by the Court of Appeal and a request made in the Respondent’s Brief for this Court to over-rule the pronouncements made by the “minority members” of the Court in Nishizawa’s case supra a full Court of 7 Justices was empanelled with the Chief Justice of Nigeria presiding.
The issue for determination formulated by the Respondents was the very same issue argued at length by Chief Williams and Mr. Cole in Nishizawa’s case supra. Obaseki, J.S.C. who wrote the lead judgment in that case ended thus:-
“I agree with counsel for the appellant that the case of Mclardy v. Slateum far from being an authority against the appellant’s stand enables a plaintiff to apply for summary judgment in spite of the existence of a statement of defence in the file. If a Statement of defence filed by the defendant in the exercise of his right under the Rules before the application for summary judgment in the circumstances of the case did not stop the Judge from granting the prayer for summary judgment, a statement of defence filed after the filing of the application will likewise have no effect on the legitimate course of the application for summary judgment.
Moreso, as the statement of defence filed by the respondent, which is demonstrably incapable of amounting to a good defence on the merit to entitle the defendant to an order granting leave to defend.
This Court is in as good a position as the High Court in this application and having considered the Statement of defence in the interest of justice, I find that it does not amount to a good defence on the merits.
The Court of Appeal and the High Court erred in holding that the Statement of defence in the light of the admissions contained in it and the facts disclosed in the affidavit filed by the plaintiff raises a triable issue.
There could therefore be no doubt whatsoever that the lead judgment of Obaseki, J.S.C. did consider the Statement of Defence filed (not the affidavit prescribed by Order 10 Rule 3 for none was infact filed) and found that it did not amount to a good defence on the merits. That is the acid test. Even if an affidavit was filed as required by Order 10 Rule 3, it has to be an affidavit of merit. The mere act of filing an affidavit is not enough to let a defendant in to defend under Order 10 procedure. There is no magic in filing an affidavit. It has to be an affidavit of merit.
Aniagolu, J.S.C. in his own contribution also considered the Statement of Defence filed though irregularly and noted at p.280 of the report:
“In none of his joggling with words, either in the Statement of defence he improperly filed, or in the arguments 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.”
In my own contribution, I held that “the Court in the exercise of its primary duty to do justice, can invoke its rather extensive discretionary powers, and look at an invalid but not void document (Statement of defence) and then do what the justice of that particular case demanded”. I did just that, by looking at the Statement of defence and found that that Statement of defence did not disclose a defence on the merits of the case. There, therefore, was unanimity among all the Justices on this score, which really was the kernel of the decision, the crux of the matter. There was no division at all into majority or minority decisions as was suggested by the Court of Appeal and by Chief Williams, S.A.N., in the Respondent’s Brief. Little wonder then that throughout the argument in this Court, the Chief Justice of Nigeria kept on asking – Where is the conflict None was referred to for none existed.
The comments of the Court of Appeal on the Supreme Court’s decision in Nishizawa supra have called for a re-statement, by this Court, of the proper relationship between a ratio decidendi and an obiter dictum. The ratio decidendi of a case represents the reasoning or principle or ground upon which a case is decided. Obiter simply means – in passing, incidentally, cursorily. Obiter dicta reflect inter alia the opinions of the Judge, which do not embody the resolution of the Court. The expression of a Judge in a judgment must be taken with reference to the facts of the case, which he is deciding, the issues calling for decision and the answers to those issues. These are what should be looked for in any judgment. The manner in which the judge chooses to argue the case is not the all important thing. Rather it is the principle he is deciding: see Best, C. J. in Richardson v. Mellish (1824) 2 Bing 248. The principles to be distilled from the Supreme Court decision in Nishizawa’s case supra is that in Order 10 Procedure, the regular thing allowed by the Rules is for the Defendant to file an affidavit of merit. That will let him in to defend. But if such defendant irregularly files a Statement of Defence, the Court, in the interest of justice, will still look at that Statement irregularly filed. If it discloses a defence on the merits, the defendant will be let in but not otherwise. In this case now on appeal, Longe J. followed the principle of this Court’s decision in Nishizawa supra but the Court of Appeal refused to do the same. It chose to pick and choose forgetting that any judgment of the Court should be read as a whole and that the whole theory of our system of judicial precedent is that the decision of a superior Court is binding on an inferior Court.
My answer to Issue (b) as formulated in the Appellant’s Brief namely:
“(a) Whether in proceedings under Order 10 a trial Court can close his eyes against a Statement of Defence which raises triable issues filed by the Respondent even if irregularly.” will of course be that to close one’s eyes to such a Statement of Defence filed albeit irregularly, will be to sacrifice the spirit of justice on the alter of the Rules of Procedure.
The 1st Issue for Determination as formulated in the Appellant’s Brief reads as follows:-
“(a) Whether judgment obtained under Order 10 of High Court of Lagos State (Civil Procedure) Rules 1972 is a judgment on merit or a default judgment”
In Cardoso v. Daniel & Ors. (1986) 2 NWLR (Pt.20) 1 at 0.45, I dealt with the meaning of “judgment on the merits.” I will now probe that Issue further. In an old case, the great Lord Mansfield observed:-
“To be sure the Court regularly adheres to regular judgments, if in support of the merits and justice; but if against the merits and justice they always get rid of the mere formality of them” Lord Mexborough v. Sir John Delaval (1774) Lofft 310.
In the above dictum, Lord Mansfield allowed merits and justice to go hand in hand. Lord Penzance, almost a century after, gave an idea of where not to look for justice:-
“The spirit of justice does not reside in formalities, or words, nor is the triumph of its administration to be found in successfully picking a way between the pitfalls of technicality. After all, the law is, or ought to be, but the handmaid of justice, and inflexibility, which is the most becoming robe of the former, often serves to render the latter grotesque. But any real inroad upon the rights and opportunities for defence of a person charged with a breach of the law, whereby the certainty of justice might be imperiled, I conceive to be a matter of the highest moment” Combe v. Edwards (1878) L. R. 3 P.O. 142.
In his Ruling that prompted these appeals, Longe J. maintained that “a judgment heard on its merits serves a better chance to convince a reasonable man that justice had been done than one obtained by summary judgment even though the Rules support such step …. ” What then is the meaning of “hearing on its merit” or “judgment on merits” A judgment on merits is one rendered after argument and investigation, and when it is determined, which party is in the right, as distinguished from a judgment rendered upon some preliminary or formal or merely technical point, or by default and without trial. A judgment on the merits is one based on legal rights as distinguished from mere matters of procedure or jurisdiction. A judgment on the merits is thus a decision that was rendered on the basis of the evidence led by the parties in proof or disproof of the issues in controversy between them. Normally, a judgment based solely on some procedural error is not, as a general rule, considered as a judgment on the merits. A judgment on the merits is therefore one arrived at, after considering the merits of the case – the essential issues, the substantive rights presented by the action, as contra-distinguished from mere questions of practice and procedure.
The above distinction is very clearly brought out by Lord Bowen in Cropper v. Smith (1884) Ch.D.700 at p.710:-
“I think it is a well established principle that the object of Courts is to decide the rights of the arties and not to punish them for mistakes they may make in the conduct of their cases by deciding otherwise than in accordance with their rights…. It was said by Mr. Barber in his very powerful speech to us – “you are taking away an advantage from the plaintiffs who have got judgment below by making an amendment at the last moment”. In one sense we should be taking away an advantage from them, but only an advantage which they have obtained by a mistake of the B other side, contrary to the true bearing of the law on the rights of the parties.”
A judgment on the merits is thus one that takes cognizance of the true bearing of the law on the rights of the parties where pleadings have been filed, issues are settled on those pleadings and the rights of the parties are decided on the resolution of those issues. Where this happens, the ensuring judgment is on the merits. But where as in this case the judgment set aside by Longe, J. was obtained by and because of the failure of the Defendant to file its affidavit as prescribed by Order 10 Rule 3 Lagos High Court Rules, then the ensuring judgment was one obtained because of the default of the Defendant to comply with said Order 10 Rule 3. In my humble view, such a judgment is certainly a judgment in default and by default. It is a default judgment and not a judgment on the merits of this case as pleaded in the Plaintiff’s Statement of Claim and the Defendant’s Statement of Defence.
The third Issue for Determination as formulated in the Appellant’s Brief of Argument is as follows:-
“(c) Whether considering the peculiar facts and circumstances of this case, the trial Judge was not right in setting aside his earlier judgment and in letting in the defence which raised triable issues”
Once the learned trial Judge exercised his discretion to let in and did in fact let in the Defendant’s Statement of Defence, the whole complexion of the case changed. Any judgment obtained without considering that Statement of Defence will not and cannot be a judgment on the merits. Again once the Statement of Defence has been let in, the proper complaint would have been whether or not the trial Judge was right in exercising his discretion to let in the defence. This aspect of the case was not fully considered by the Court below. Having let in the defence on the understanding that the Statement of Defence filed disclosed a defence on the merits, the learned trial Judge had no other option left than to set aside his earlier judgment which the Plaintiffs obtained because of the failure or default of the Defendant to comply with Order 10 Rule 3, its failure to file an affidavit of merits.
This then leads on naturally to a consideration of the provisions of Order 24 Rule 15, which stipulates:-
“24 -15 Any judgment by default, whether under this Order or under any other of these Rules may be set aside by the Court or Judge in Chambers, upon such terms as to costs or otherwise as such Court or Judge in Chambers may think fit……
The trial Judge has a wide discretion when dealing with the setting aside of a judgment obtained by a party because of the failure of the opposite party to comply either with an order of Court -say an order for pleadings, or with the requirements of the Rule – say the requirements of Order 10 Rule 3 of the Lagos State High Court (Civil Procedure) Rules. In Spira v. Spira (1939) 3 All E. R. 924 on which both sides relied, it was not decided that the judgment could not be set aside. What was decided was that having regard to the entire circumstances of the case including the inordinate delay in applying for the order to set aside, the judgment should not be set aside. Should not be set aside, and could not be set aside, are two completely different things. “Could not” imports radical and essential incapacity, while “should not” imports an element of discretion having regard to the surrounding circumstances of the particular case in question. Du Parcq, L. J. in his judgment in Spira v. Spira at p.927 brought out this point as follows:-
“They could then have applied to set aside the judgment. Instead of doing that, they proceeded to negotiate. When there was a breakdown in the negotiations, they then sought to set the judgment aside, but it was very late in the day.”
In the case on appeal, there was no such inordinate delay. The application to set aside immediately followed the application for extension of time to file the Statement of Defence. The learned trial Judge who had the discretion to allow or refuse the application to let in the defence exercised that discretion (which has not been questioned in this appeal) and then observed that “there has not been too much delay on the part of the defendant to be allowed to be heard on the merits”. The facts of Spira’s case are therefore not the same as those of the case now on appeal. The principle, one would like to emphasise here, is that, unless and until the Court has pronounced a judgment on the merits of the case – that is to say on the Statement of Claim and the Statement of Defence – or by consent, it is to have and reserve to itself 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 which are in any event mere handmaids of justice: Evans v. Bartlam (1937) 2 All E.R. at p.646 refers.
In the final result, it was for all the reasons given above and for the fuller reasons in the lead Reasons for Judgment of my learned brother Uwais, J.S.C, that I, on the 5th day of December, 1988, allowed this appeal.
BELGORE, J.S.C.: Rules of procedure are made for the convenience and orderly hearing of cases in Court. They are made to help the cause of justice and not to defeat justice. The rules are therefore aids to the Court and not masters of the Court. For Courts to read rules in the absolute without recourse to the justice of the cause, to my mind, will be making the Courts slavish to the Rules. This certainly is not the raison d’etre of Rules of Court. In the present case the appellant manifestly indicated not only the desire to defend as defendants but also indicated some possible defence. It was too early to say if such a defence would avail the defendant, it is enough if it, could possibly be a defence.
It is for these reasons and for the fuller reasons given by Uwais, J.S.C. in the lead reasons for judgment, that I allowed this appeal on the 5th day of December, 1988. I make same orders as to costs.
NNAEMEKA-AGU, J.S.C.: On the 5th day of December, 1988, this appeal was dismissed summarily, but I reserved the reasons for my judgment till today. I now state my reasons.
My learned brother, Uwais, J.S.C. has stated fully the facts of the case leading up to this appeal. I only need to mention briefly those facts of the case as are necessary to make the reasons for my judgment intelligible.
The plaintiffs brought an action by a specially-endorsed writ of summons filed on 9th April, 1984, which was accompanied with a statement of claim against the 1st defendant and one Christopher Nwabuko, a Sales Manager in the 1st defendant’s motor company at Sabo, Yaba. It was a claim for the sum of N54,911.00 being money had and received for the delivery of some motor vehicles. The defendant entered appearance on the 16th of April, 1984.The plaintiffs’ application for summary judgment under Order 10 rule 1 of the Lagos State (Civil Procedure) Rules, 1973, was fixed for hearing on the 25th of June, 1984. The defendants filed no affidavit to show cause under Order 10 rule 3. When the summons for summary judgment came up for hearing, the defendants were absent. So, Longe J, entered judgment for the plaintiffs in terms of their claim. Rather, as it turned out, at about 9.34 a.m., the 1st defendant filed a motion for extension of time to file a statement of defence. A draft statement of defence was exhibited to the application. Furthermore, on the 27th of June, 1984, the 1st defendant filed a motion that the summary judgment be set aside. They gave reasons which satisfied the learned trial Judge that he should exercise his discretion in their favour. He held that he was invoking the law and equity implicit in Order 24 rule 15 of the Rules and proceeded to set aside the judgment.
On the plaintiffs’ appeal to the Court of Appeal, that Court allowed the appeal and restored the summary judgment. In sum, in the lead judgment of Ademola, J.C.A., to which Mohammed and Kolawole, J.J.C.A., concurred, he held:
1. The question for determination is not whether the learned Judge exercised his discretion rightly in setting aside the judgment but rather 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.
2. Dealing with what he called the peripheral issue first, he held:
Therefore, I am in agreement with Chief Williams that the proposed statement of defence filed in these proceedings after the summary judgment has 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.”
He also stated that following the judgment of this Court in Nishizawa Ltd. v. Jethwani (1984) 12 S.C. 234 the only manner to show cause under Order 10 procedure is by means of an affidavit. That was the opinion of the majority, and is the law.
3. Then he stated:
“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 show 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 is a judgment on the merit and not on default of pleadings.”
4. He relied on the case of Bank of the North Ltd. v. Intra Bank S.A. (1969) 1 All N.L.R. 91. Then he held that a judgment obtained under Order 10 rule 1 cannot be set aside under Order 24 rule 15.
The question that must be answered in this appeal is whether these conclusions were correct.
Chief Williams has supported this and relies on the decision of the Court of Appeal in England in Spira v. Spira (1939) 3 All E.R. 924 where they construed Order 27 rule 15 of the English Rules which is similarly worded as Order 24 rule 15 of the Lagos State Rules.
Chief Debo Akande submitted that the decision in Jethwani Case was not correctly put, in view of the clear pronouncements of the different Justices, including Obaseki, J .S.C., who participated in that decision. He again referred to the decision in Chief Harold Sodipo v. Lemminkainen Oy & Anor. (1986) 1 N.W.L.R. (Pt.15) 220, at p.231, which is in line with what Aniagolu and Oputa, J.S.C., said in Jethwani Case (supra). He submitted that Spira v. Spira (supra) was not a case based on the principles of our own rules. Order 24 rule 15 contemplates, inter alia, a judgment under Order 10, it is not a judgment on the merits; the trial Judge was right to have exercised his discretion to set it aside.
In his reply, Chief Williams submitted that a judgment in default is one obtained in default of one’s opponent, not of one’s self. It is only the affidavit, not a statement of defence that can be looked at under rule 3 unless the defendant is examined on oath.
Chief Akande, with leave, submitted that if Order 24 rule 15 does not cover the situation, then we should import the English practice under Order 14 rule 11.
Chief Williams, in reply, submitted that both our Order 10 and the English Order 14 are each a complete code unto itself and so English practice cannot be imported.
I think it is necessary to deal first with the case of Bank of the North Ltd. v. Intra Bank S.A. (supra), in, which this Court, per Ademola, C.J.N. held that a judgment obtained under Undefended List is a judgment on the merit. Much as this Court can differ from a previous decision of the Court, it will not do so lightly. It must have good reasons to do so. So that, if the Court of Appeal was right to have come to the conclusion that in so far as a judgment obtained under Undefended List was one on the merits, as per the judgment in the Bank of the North Case (supra), it follows that one obtained under Order 10 of the Lagos State Rules is also a judgment on the merits, then I have to follow that decision unless I see very good reasons for not doing so.
But, are the two types of judgments the same It must first be noted that until the promulgation of the Common Procedure Rules, whereas the Rules applicable in Lagos, the Western States, and Bendel have provisions for summary judgments (see Order 25A (West) and Order 10 Lagos), the Rules applicable in the Northern and the Eastern States (see Order 3 Rr.8-14 (North) and Order 3 Rr.9-14 East), have provisions for Undefended List. The procedures for the two sets of Rules are different. Under Undefended List, an application is made to the court for issue of a writ of summons in respect of a claim to recover a debt or liquidated demand. The application is supported by an affidavit which is filed along with the writ, and which sets out the grounds of the claim and states that in the deponent’s belief, the defendant has no defence to the action. Once the court is satisfied that there are good grounds for believing that there is no defence thereto, it shall enter the suit for hearing under Undefended List and it will be marked accordingly. A copy of the affidavit is served with each copy of the writ. If the defendant is not disputing the claim, he does not need to do anything. In that case, on the date fixed for hearing, judgment will be given to the plaintiff without his calling evidence in proof of his claim, unless the court, of its own discretion, in the interest of justice, calls for oral or documentary evidence. Even if the defendant is present in court, he cannot take part in the proceedings at the hearing: see U.A.C. (Technical) Ltd. v. Anglo Canadian Cement Ltd. (1966) N.M.L.R. 349, per Ikpeazu J., (as he then was). Such a judgment is one on the merits, which can be set aside only on appeal or by another action, say, in the case of fraud: V.A. C. Technical Ltd. v. Anglo Canadian Cement Ltd. (supra). Indeed in Leventis Motors Ltd. v. G.C.S. Mbonu (1962) N.N.L.R. 19, Reed J., treated such a judgment as one obtained by consent. It is, of course, settled that a judgment by consent, once passed and entered, cannot be set aside save on appeal, even if it was entered under a mistake. See on this Ainsworth v. Wilding, (1896) 1 Ch.673; Kinch v. Walcott (1929) A.C. 482, 493 & 494. Where, however, a defendant who has been served with the writ and the affidavit of the plaintiff delivers to the Registrar not less than five days before the date 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 the case shall be entered in the general list for hearing. See Olubusola Stores v. Standard Bank of Nigeria Ltd. (1975) 4 S.C. 51. Where the defendant gives notice of his intention to defend but his affidavit does not show reasonable grounds of defence the case will still be heard under undefended list; see E.N.D.C. v. Felix Durunna (1966-7) 10 E.N.L.R. 201. Even where a defendant neglects to deliver a notice and an affidavit as required by the rules, within the time before judgment, he may on an affidavit disclosing a defence on the merits and satisfactorily explaining his neglect, be let in to defend on terms. Thus, it is clear that under the rules, everything is provided to ensure that any defendant who has an arguable case and intends to defend the action is given the opportunity to do so. From this state of affairs it is clear that there is some justification for saying that a defendant who allowed a judgment to be entered against him under undefended list acted deliberately. For even where he takes an improper or insufficient step, such as merely filing a notice not supported by an affidavit, he may get an adjournment to give him a chance to take the proper step to enable the court consider his notice of intention to defend: see John Holt & Co. (Liverpool) Limited v. Fajemirokun (1961) All N.L.R. 492.
In the case of summary judgments, the procedure, scope and in my view effect are different. Provisions therefore in, say, Lagos State follow closely those under Order 14 procedure in England. It is available for most actions, which could be assigned to the Chancery or the Queen’s Bench Division in England. The writ must be specially endorsed and be endorsed with or accompanied by a statement of claim. There is similarly an affidavit by the plaintiff.
The defendant has equally an opportunity of filing an affidavit to show cause why summary judgment should not be entered against him. But there are two significant differences in procedure between the two. The plaintiff, in case of a summary judgment must file an application by summons for leave to enter final judgment. When the application is heard, unlike an undefended list when after an application for a case to be put on the list is granted the case is then fixed for hearing thereby giving the defendant another opportunity of coming in to contest the case, under Order 10 procedure, once the application is granted, the plaintiff is given leave to enter final judgment. Also under Order 10 procedure, leave to defend may be given unconditionally or upon terms, there is no such provision under undefended list. Indeed it is recognized that a judgment under the English equivalent of Order 10 is a form of judgment in default (see S.C. Practice, 1982, paras. 14/11/1.
It is, thus, clear that there are important differences in scope and procedure between the two. Even the case of Bank of the North (supra) which the learned Justice of the Court of Appeal relied upon appreciated that they were two different types of procedure where Ademola, C.J.N. said at page 97 of the report:
“In our opinion, it is wrong to equate Order III rules 9-14 with the summary judgment rules under Order 14 of the English Rules. Thus, we have come to the conclusion that the rules governing the practice known as Undefended List must be considered in their own isolation and English practice and rules must not be brought in.”
It must always, therefore, be borne in mind that the procedure of undefended list available in some States of the Federation are without any parallel under English rules of procedure. So, cases decided under the summary judgment rules, which have their rooting and parallel under English rules are no guide. The Court of Appeal was therefore in error to have held that because a judgment under undefended list is a judgment on the merits, a summary judgment obtained under Order 10 procedure is necessarily so. The correct thing is to construe the provisions of the rules.’
I should begin my consideration of the question whether or not a summary judgment could be set aside by observing that he appeared to have taken the view from part of his judgment which I set out under 3 above that order 24 rule 15 has to do solely with default of pleadings. Having taken that narrow view, he came to the conclusion that a summary judgment under Order 10 is not the type of judgment contemplated by the rule. He reinforced his conclusion on the point with the decision of the majority Justices of this Court per Obaseki, J.S.C., in Jethwani Case (supra).
My learned brother, Uwais, J.S.C., has set out in full the dicta of my Lords, the Justices of this Court in lethwani Case (supra). I do not want to repeat them here. It is sufficient for me to observe that even the opinion of Obaseki, J.S.C., which has been relied upon to say that a statement of defence though filed irregularly under the rules ought not to be taken into consideration to decide whether or not a defendant should be let in to defend, did not go that far. For at pages 256-7 of the report (1984) 12 S.C. 234) the learned Justice said:
“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 question that arises when a statement of defence is filed as in the instant appeal before the consideration of the application for judgment under Order 10 is whether it fulfils the requirement of the rule that the defendant may “show cause”.
Then he continued at p.257
“With the guidelines given by Order 10 rule 3(a), (b) and (c) in mind, a statement of defence simpliciter is not a manner of showing cause against a statement of claim verified by affidavit. 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 a defendant wants to elevate the facts pleaded to that requirement, he must depose to them on oath in an affidavit.”
What I understand the learned Justice to have said is that the rule has prescribed that the manner of showing cause under Order 10 rule 3 is by an affidavit, but once a defendant has filed a statement of defence, albeit irregularly under the letters of the rule, a trial Judge faced with the difficult but important task of deciding whether or not he should let in the defendant to defence cannot close his eyes to such a statement of defence. He must have to take it into account. This is of course in line with the decision of this Court in United Bank for Africa Ltd. & Ors. v. Nworah (1978) 2 L.R.N. 149 and is not so different from the dicta of Aniagolu and Oputa, J.J.S.C, referred to. See also the statement of this Court on the rule in Sodipo v. Lemminkainen OY (1986) 1 N.W.L.R. (Pt.15) 220, per Eso, J.S.C., at p.231.
Now what does Order 24 rule 15 say What approach should I adopt I must confess that I do not intend to construe the meaning of this provision by reference to the decision in Spira v. Spira (supra) or Order 27 rule 15 of the R.S.C. 1958 under which it was decided. This is not only because it upsets my sense of justice to have to rely on decisions of the Court of Appeal in England as though they were binding authorities even in this Court whereas they have at least persuasive effect, but also, quite often even when the words of our own rules appear to be the same with those of the English, the setting is different and ought to make some difference in the construction. Besides, I entirely share the opinion expressed by Lord Eso, J.S.C., at pp.231-232 of Sodipo Case (supra) where he stated:
“I do feel, however, that the time has come when Rules of Court in this country should start to exist without necessary reference to or dependence upon English Rules. Such dependence does not help wiping out of colonial mentality in the laws of this country. 13 Our Civil Procedure Rules should, in effecting the experiment made for so long with the English legal system, commence a voyage of its own, which is purely Nigerian and which could assimilate or shed off some of the cumbersome English procedure which is amended from time to time to suit purely and rightly too, the English legal system.”
It is my view, therefore, that when we are faced with the problem of the construction or application of some Nigerian Rules of Court, it is a retrograde step to start by trying to find out what an English Court said of a similar rule, cast in a different legal setting in England, even if the words appear to be similar. Rather, we should interprete those rules from the background of our own local legal setting and environment. In so doing, we may draw from the principles of interpretation as established in England in so far as they have not been changed by our local interpretation laws or modified by local usage. This underscores my attitude to the effort of Chief Williams to address us at length on the Spira decision. I shall not base my decision on that case. Howbeit it is noteworthy that my learned brother, Uwais, J.S.C. has shown that even in that decision, Du Parcq, L.J., expressed the view that a court can intervene and set aside the decision under Order 14 in case of hardship.
Now Order 24 rule 15 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 a Judge in Chambers in the same way as if judgment by default had been signed when the case was set-down.”
I shall interpret the rule literally and, because it is a rule of court, beneficially but must bear in mind its legal setting. On the last point, I have noted that it comes under a group of rules, which deal with default of pleadings. But these are not the only defaults dealt with in the Rules. Order 9 deals with default of appearance. Order 11, which is specifically, mentioned in Order 24 rule 15 deals with summary judgment where no defence has been filed in a claim for specific performance, accounts, etc. In point of fact, Order 24 deals with last group of defaults under the Rules. It is from this setting, I believe, that I should proceed to construe Order 24 rule 15. It appears to me that it deals with two groups of defaults, namely:
(i) Defaults under this Order, i.e. under Order 24 itself, and
(ii) Defaults “under any other of these Rules,” i.e. under any other rule or order under the High Court of Lagos State (Civil Procedure) Rules, 1973.
I do not see how I can give the rule any other meaning without doing violence to the words of the rule itself. To have limited it to default of pleading, as Ademola, J.C.A., had done in the Court of Appeal is to ignore the phrase “under any other of these Rules” altogether. But it is now a settled principle of construction of statutes that the legislator does not use any words in vain. See on this: Hill v. William Hill Park Lane Limited (1949) A.C. 530, at pp.546-547. With respect, the learned Justice of the Court of Appeal was in error to have limited the rule to default of pleadings.
It appears to me that the learned Justice, Court of Appeal, has also given too restricted a meaning to the words “default judgments”. He construed them to mean “default” in carrying out any order of court. This automatically excludes all defaults in carrying out stipulations of the rules themselves. Given that meaning it would even exclude default of pleadings, as times for pleadings have been settled by the rules under the High Court of Lagos State (Civil Procedure) Rules 1973 and are no longer by order of court. But to so hold would be to interpret the rule itself to nothingness, in view of the clear words of the rule. Indeed the elaboration on Order 11 (which deals with summary judgments when no defence has been filed in a claim for specific performance or accounts, etc.) shows that the words “default judgment” were intended to be given a broad meaning to include a situation where the defendant has failed to take any step he was intended to take under Order 10 rule 3 to be let in to defend the action. Indeed Order 11 is a version of Order 10 as applied to specific performance, accounts, etc. I do not see myself on what principle a judgment in a cognate provision under Order 10 will be denied the same remedy. I am satisfied that a summary judgment under Order 10 of the High Court of Lagos State (Civil Procedure) Rules, 1973, can, in appropriate cases, be set aside by the same Judge under Order 24 rule 15. This is in accord with the principle enunciated by Lord Atkin in Evans v. Bartlam (1937) 2 All E.R. 646 where he said:
‘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.”
Having held that judgment under Order 10 is not a judgment on the merit, I am of the view that the learned Judge was right to have invoked his powers under Order 24 rule 15 to set it aside.
It is left for me to mention the purpose of the draft statement of defence, which was filed after the summary judgment, had been entered. It was not available to stop the learned Judge from entering the judgment for the plaintiff. But it became a part of the materials placed before him which he should, and did, rightly I hold, take into account in deciding whether or not he should set-aside the judgment. As I see it, Order 10 procedure is both a necessary weapon and a potential engine of injustice. It is a necessary weapon for obtaining quick judgment where the defendant either has no defence to the action of the type contemplated by the rule or does not, for any reason, want a contest. It becomes an engine of injustice where a defendant has been improperly shut off from putting across a valid defence. It is only by balancing these two principles that justice will be done and injustice averted by the application of the rules. I am of the clear view that the learned trial Judge was right when, after being satisfied as to the reasons why the appellant did not take the proper steps on time, he looked at the draft statement of defence and decided that the equity and justice of the case was on the side of the appellants.
For the above reasons and the fuller reasons contained in the reasons for judgment of my learned brother, Uwais, J.S.C. I allowed the appeal and set-aside the judgment of the Court of Appeal and restored the ruling of the learned Judge setting aside his previous judgment in the suit.
Appeal Allowed.
Appearances
Chief Debo Akande, S.A.N. (with him, A.I. Debo Akande (Miss)) For Appellant
AND
Chief F.R.A. Williams, S.A.N. (with him, O.M. Ayeni (Mrs.)) For Respondent