JOHN HOLT AND CO. (LIVERPOOL) LTD. (PLAINTIFF)
HENRY FAJEMIROKUN (TRADING AS HENRY STEPHENS AND SONS) (DEFENDANT)
(1961) All N.L.R. 513
Division: High Court of Lagos
Date of Judgment: 26th June, 1961
Case Number: Suit No. LD/249/1961
Before: Lambo, J.
The plaintiffs brought this action on the Undefended List to recover a liquidated sum from the defendant. The defendant filed an Affidavit but omitted to file the required Notice of Intention to Defend. At the hearing, the plaintiff asked for Judgment to be entered against the defendant in the sum claimed in the writ in view of the defendant's failure to give the required Notice of Intention to Defend. The court struck out the defendant's Affidavit but ordered the defendant to file an Affidavit under Order III, rule 12 of the Supreme Court (Civil Procedure) Rules, disclosing a defence on the merits. The defendant, in purported compliance with the court order filed an Affidavit averring that he had a good defence to the action without stating facts which would, if proved, constitute such a defence.
The requirement of the Supreme Court (Civil Procedure) Rules, Order III, rule 12, is not satisfied by a general statement in the Affidavit of merits that the defendant "has a good defence to the action", and the court will refuse to allow a defaulting defendant to defend an action brought on the Undefended List if such general averment is unsupported by particulars, which would, if proved, constitute such a defence.
Judgment for the Plaintiffs.
Case referred to:-
Wallingford v. Mutual Society (1880) 5 A.C. 685; 50 L.J. Q.B. 49; 43 L.T. 258; 29 W.R. 81.
Orders and Rules referred to:
Supreme Court (Civil Procedure) Rules Order III, rules.9, 11, 12.
ACTION on Contract.
Oseni for the Plaintiffs.
Alli-Balogun for the Defendant.
Lambo, J.:-This is an action to recover a liquidated sum of £9,763-18s-4d and, upon an application under Order III, rule 9 the High Court (Civil Procedure) Rules, Cap. 211 of the 1948 Laws of Nigeria, for liberty to sign final Judgment for the amount endorsed on the writ. To the Affidavit in support of the claim is attached a Statement of Account. The period covered by the account is 8th October, 1958 to 30th November, 1960.
The defendant Henry Fajemirokun was duly served with the writ of summons and Affidavit and, on the 5th June, 1961, filed an Affidavit which is headed "Affidavit of Intention to Defend" in a purported attempt to comply with Order III, rule 11 which provides as follows:
If the party served with the writ of summons and Affidavit delivers to the Registrar, not less than five days before the day fixed for hearing, a notice in writing that he intends to defend the suit, together with an Affidavit setting out the grounds of his defence, then and in such case the suit shall be entered in the general list for hearing.
Upon the matter coming up on the 12th June, 1961, Counsel for the plaintiffs quite rightly submitted that the defendant failed to comply with Order III, rule 11 and moved the court for Judgment in favour of the plaintiffs. In Order to comply with Order III, rule 11 defendant must file:-
(a) A Notice in writing that he intends to defend the suit, with
(b) An Affidavit setting out the grounds of his defence.
As it was clear that the defendant failed to comply with the aforesaid rule, I struck out the Affidavit. However, I acted under Order III, rule 12 and ordered the defendant to file an Affidavit disclosing a defence on the merits, and satisfactorily explain his neglect in complying with Order III, rule 11 in the first instance. Now Order III, rule 12 states as follows:-
Where any defendant neglects to deliver the Notice of Defence and Affidavit as described in the last preceding rule within the time fixed by the said rule, the court may, at any time before Judgment is entered, on an Affidavit disclosing a defence on the merits and satisfactorily explaining his neglect, let in the defendant to defend upon such terms as the court may think just.
In pursuance of the Order, defendant filed a Notice of Intention to defend (which I did not order and which, in any case, is belated) and an Affidavit purporting to set out his defence on the merits to the claim.
The Affidavit is in 14 paragraphs. Paragraph 4 disputes the claim; paragraph 5 accuses the plaintiffs of failure "to render a correct and faithful account of their dealings with, for and on behalf of the defendant"; paragraph 11 states that the defendant has "a good defence to this action."
Paragraphs 6, 7, 8 and 10 refer to certain other transactions which do not appear in the Affidavit to be related to the present claim. At least they are not so stated.
Paragraph 9 accuses the plaintiffs of failure to show the defendant receipts in proof of the items claimed. It is, however, not clear from the Affidavit how this demand was made. If it was a written demand one would expect a copy of the letter to be exhibited to the Affidavit. If, on the other hand, it was oral one would expect proof of the person in the employment of the plaintiffs to whom it was made.
Now paragraph 5 of the defendant's Affidavit amounts, in my view to an allegation of fraud against the plaintiffs without any particulars of the alleged fraud being given. In the case of Wallingford v. Mutual Society, 5 A.C. 685, at 697, Lord Selborne stated as follows:-
With regard to fraud, if there be a principle which is perfectly well settled, it is that general allegations, however strong may be the words in which they are stated, are insufficient even to amount to an averment of fraud of which any court ought to take notice. And here I find nothing but perfectly general and vague allegations of fraud. No single material fact is condescended upon in a manner which would enable any court to understand what it was that was alleged to be fraudulent.
Again at 704 of the same report, Lord Blackburn observed as follows:-
If you swear that there was fraud, that will not do. It is difficult to define it but you must give such an extent of definite facts pointing to the fraud as to satisfy the Judge that those are facts which make it reasonable that you should be allowed to raise that defence.
It follows, therefore, that I should not be expected to act upon such general and vague allegations, that the plaintiffs have failed to render "a correct and faithful account" of their dealings with the defendant without in any way showing in what respects the accounts had been incorrect and dishonest.
The defendant, in paragraph 4 of his Affidavit, disputes owing the amount claimed. It is my view that that is not enough. I must be satisfied that there is reasonable ground for saying so. Indeed, Lord Blackburn in the case of Wallingford v. Mutual Society, (cited supra), stated at 704 as follows:-
It is not enough to swear, 'I say I owe the man nothing.' Doubtless, if it was true, that you owed the man nothing as you swear, that would be a good defence. But that is not enough. You must satisfy the Judge that there is reasonable ground for saying so.
The defendant has said in paragraph 11 of the Affidavit that he has "a good defence to this action", but has not set out what the defence is, even though leave was granted to the defendant to file an Affidavit disclosing a defence "on the merits." The word "good" does not, in my view, save that statement on oath from being a regrettable one.
So, looking at the Affidavit, it is manifest that in none of the paragraphs did the defendant satisfy the burden that was cast upon him to file an Affidavit disclosing a defence to this action on the merits.
On August 20th, 1960, the plaintiffs wrote to the defendant demanding payment of £9,542-8s-8d which was the balance due from the defendant to the plaintiffs as at the end of July 1960. The last paragraph of that letter which was annexed to the defendant's Affidavit as exhibit A reads as follows:-
In the event of your disputing the above figure, we would ask you to settle the amount you do agree, leaving the balance for future clarification.
The deponent says in paragraph 13 of his said Affidavit that this letter amounts to a statement that the plaintiffs are indebted to him "for a large sum of money." I am unable to put such a wide construction on the letter. In my view, it proves the contrary. There is nothing in the defendant's Affidavit to show that after receipt of that letter from the plaintiffs it was ever countenanced or that the amount claimed therein was ever disputed.
I am satisfied that the defendant wants leave to defend this action for mere purposes of delay. I consider it inexpedient that he should be allowed to do so.
There will, therefore, be Judgment in favour of the plaintiffs against the defendant for £9,763-18s-4d and costs.
Judgment for the Plaintiffs.