IN THE HIGH COURT OF LAGOS
ON MONDAY, THE 16TH DAY OF NOVEMBER 1970
IRENE ALAKE ADEBAJO ...................................................... PLAINTIFF/APPLICANT
LUKE ADEPEJU ADEBAJO & OTHERS ...................................................... DEFENDANTS/RESPONDENTS
BEFORE: Taylor, C.J.
The defendants/respondents moved the court under Order 76, rule 13 of the Rules of the Supreme Court of England for an order striking out paragraphs 4 and 5 of the Statement of Claim filed in the substantive Suit or in the alternative that the plaintiff/applicant do not give further and better particulars of certain matters contained in the motion paper.
The court delivered a ruling in favour of the plaintiff/applicant on the first part but on the alternative ground seeking for particulars the court held in favour of the defendants/respondents.
The plaintiff/applicant then filed an application seeking leave to appeal from the ruling of the court and further for a stay of proceedings in the action.
(1) The granting of leave to appeal is not automatic. It is within the discretion of the particular Court to grant or to refuse the application or to grant leave on one or more points of importance and refuse leave generally on facts. It is a discretion which must be judiciously exercised and the courts ought not to be weighed down by such considerations as the fear, on the part of the court to create the impression of unwillingness to have its decision tested in a higher court.
(2) The jurisdiction which the judges of the High Court have to give or to refuse leave to appeal from their own decisions is a very delicate one. Merely to say that they are satisfied their decision is right is not a sufficient reason for refusing leave to appeal, when the question involved is one of principle and they have decided it for the first time.
(3) As for the order for particulars there was nothing new from the point of view of law or principle to warrant the exercise of the court's discretion in favour of the plaintiff/applicant and also grant her a stay of the proceedings; consequently the application would be dismissed.
Had the court's ruling in respect of Order 76, rule 13 been against the plaintiff/appellant, the court would have readily granted her leave to appeal.
Cases referred to:
Ex Parte Gitchrist IN RE Armstrong  17 QBD 521
Ojora v. Odunsi (1964) 1 N.L.R. 55.
Orders and Rules referred to:
Rules of the Supreme Court (England) Order 76, rule13; Order 18, rule 7
APPLICATION FOR LEAVE TO APPEAL
Chief Williams, for the Plaintiff/Applicant.
Sofola, for the Defendants/Respondents.
Taylor, C.J.:-The present respondents moved this Honourable Court on Monday the 14th September, 1970, for an order striking out paragraphs 4 and 5 of the Statement of Claim filed in the substantive suit or in the alternative that the plaintiff do give further and better particulars of certain matters contained in the motion paper.
I delivered a considered ruling in this matter in view of the fact that the first part of the application was brought under Order 76, rule 13 of the Rules of the Supreme Court of England which has not to my knowledge received judicial interpretation or application in Nigeria and the authorities even in England are comparatively few. In my ruling delivered on the 28th September, I held in favour of the plaintiff on the first part but on the alternative ground seeking for particulars I held in the defendants favour. Perhaps it is as well to say now that in view of the numerous applications already brought in this suit it will make for easier reference if I refer from now on to the parties as plaintiff and defendants.
Now the plaintiff has filed an application which is the subject matter of this ruling, seeking leave to appeal from my ruling of the 28th September, 1970, and further for a stay in proceedings in the action.
From a perusal of the grounds of appeal it would appear that the whole of my ruling of that day was unsatisfactory to the plaintiff but be that as it may the fact remains that the interpretation put upon Order 76, rule 13 by the court was in favour of the plaintiff. It was under Order 18, rule 7 of the aforesaid Rules that I ordered particulars to be filed in the alternative.
Now it is set against the Ruling that I ordered particulars which were not sought; that I did not hear argument from the parties as to the desirability or necessity of making an order in the terms I made it and other matters are urged in the grounds of appeal.
In Ex Parte Gilchrist in re Armstrong 1886 17QBD 521 at 528 Lord Esher, M.R., said in respect of applications for leave to appeal that:-
"The jurisdiction which the Judges of the Divisional Court have to give or to refuse leave to appeal from their own decisions is a very delicate one. Merely to say that they are satisfied their decision is right is not, I venture to suggest, a sufficient reason for refusing leave to appeal, when the question involved is one of principle and they have decided it for the first time..."
Had my ruling in respect of Order 76, rule 13 been against the present plaintiff I would have readily granted her leave to appeal but as I have said it was in her favour. As for the order for particulars there is nothing new from the point of view of law or principle to warrant the exercise of my discretion in favour of the plaintiff and also grant her a stay of the proceedings set down for hearing on the 5th, 7th and 8th January, 1971.
In the case of Ojora v. Odunsi 1964 ALL N.L.R. 55 where I had the privilege of delivering the judgment of Supreme Court I said at page 61 of the report that:-
"In doing so we would like to point out that the granting of leave to appeal is not automatic. It is within the discretion of the particular Court to grant or to refuse the application or to grant leave on one or more points of importance and refuse leave generally on facts. It is a discretion which must be judiciously exercised and the courts ought not to be weighed down by such considerations as the fear, on the part of the court, to create the impression of unwillingness to have this decision tested in a higher Court."
During the hearing of the application Chief Williams made me to understand that he would find it difficult to supply some of the particulars required but if that be the case he is quite at liberty after supplying such information as is within the knowledge of his client to state that his client has no knowledge of the remaining matters. It is said in the 11th Edition of Bullen & Leake's Precedents of Pleadings at page 58 that:-
"At the same time, particulars will not be exacted where it would be oppressive or unreasonable to make such an order, as where the information is not in the possession of either party, or could only be obtained with great difficulty..."
Before bringing this Ruling to a close I ought to say a few words about one two complaints made by the plaintiff against the order for particulars. In the first place, a comparison of paragraphs (a) (b) and (c) of the alternative prayer in the Motion of the defendants for particulars with the order made for particulars should without any difficulty show that the terms of the Order were well within the prayer sought. Finally as to hearing Counsel on the matter I have recorded in my record book that before parties addressed me on the Motion I put the following question to Chief Williams as I thought he would not be opposing the application for particulars:-
"Court: Chief Williams have you any objection to supplying the particulars?"
In reply Chief Williams drew my attention to Order 76, rule 13 and stated further, inter alia that he had done all that Order 76 required him to do. After a further question by the court as to the request for particulars under (d) of the alternative prayer Chief Williams agreed that in respect of (d) he could not supply the impossible and I might add that no order has been made for particulars under paragraph (d).
In Mr Sofala's address he stated, inter alia: "We have applied for particulars by letter but none have been submitted."
I, therefore, find it difficult to understand how in the grounds of appeal it can be said that:-
"He (i.e. the court) did not hear argument from the parties as to the desirability of necessity of making an order in such terms."
I take it that this means an Order as to particulars inasmuch as the courts in a reserved ruling or judgment is unaware of the "terms" of the ruling or judgment until it is in the process of writing it. In this particular case, as my record shows I invited argument on particulars being ordered or not, if the parties or one of the parties did not then choose to address me as fully as he now would desire that is no ground for my giving leave to appeal.
For the reasons already given I dismiss the application with costs which will be costs in the Cause.