The plaintiff/respondent brought an action against the defendant/applicant in the Magistrates' Court for the sum of £200 as money due on a friendly loan. The trial Magistrate heard this cause and gave judgment for the plaintiff/respondent. The defendant/applicant brought an application before another Magistrate to set aside this judgment. The other Magistrate set aside the earlier judgment and relisted the case for hearing. He reheard the case and again found in favour of the plaintiff/respondent.

The defendant/applicant appealed to the High Court, and the High Court allowed the appeal on the ground that the other Magistrate acted without jurisdiction and his judgment was a nullity with the result that the judgment of the first Magistrate still subsisted.

The present application before the court was one for an order for extension of time within which to file an appeal against the judgment of the first magistrate.

HELD:

(1)     Under the circumstances of this case, a Court must apply similar principles to those it would apply in an application to set aside a default judgment. One of these principles is that there ought to be an affidavit of merits or its equivalent, particularly in a case where two Courts have found against the applicant.

(2)     In the affidavit sworn to by the defendant/applicant there was no mention of the existence of a defence or merit in such defence. There was no evidence in rebuttal and short of an affidavit of merit or its equivalent, showing prima facie substantial grounds of appeal, the court would not be inclined to exercise its discretion in favour of the defendant/applicant.

PER CURIAM:

(1)     Where a Court, whether a High Court or a Magistrates' Court has heard evidence even if only that of the plaintiff and has satisfied itself that the defendant was served, for another Judge or Magistrate in circumstances where the trial Judge or Magistrate is available, to rehear the case after setting it aside, is to constitute that Court an appellate court even if only on the issue of whether the first Court was right in holding that service had been effected.

(2)     In section 47 of the Magistrates' Court (Lagoz) Ordinance the words "at the same or any subsequent sitting of the court" of "a Magistrate" in order to make sense can only have reference to the "Same sitting" or "subsequent sitting" of the Magistrate or Court that gave the judgment Any other interpretation would not fit in with the word "Same".

Application dismissed.

Cases referred to:

Abeki v. Amboro [1961] Part II All. N.L.R. 368.

Spira v. Spira [1939] 3 A.E.R. 924.

Evans v. Bartlam [1937] A.C. 473

Schafer v. Blyth [1920] 3 KB 140

Burgoine v. Taylor [1877] 7 Ch.D

Cockle v. Joyce [1877] 7 Ch.D

Acts referred to:

Magistrates' Court (Lagos) Ordinance Section 47

Magistrates' Court (Civil Procedure) Ordinance 1948, Sections 53(1); 76

Magistrates' Court (Lagos) Ordinance Sections 46 and 47.

Statute 51 and 52 Victoria (England) Section 91.

High Court Rules, Order 40, rule 5.

APPLICATION for Extention Of Time To File Appeal.

Somoye, for the Defendant/Applicant

Odunowo, for the Plaintiff/Respondent

Taylor, C.J.:-The present respondent filed an action against the present applicant in the Magistrates' Court for the sum of £200 as money due on a friendly loan. On the 28th March, 1967, Magistrate Bamgboye heard this cause and gave judgment for the plaintiff, now respondent. In the record of proceedings the learned Magistrate records as follows:-

"In spite of demands the defendant has failed to pay. Plaintiff appears. Mr Akinbiseyin appears for the plaintiff. Defendant absent. Served. No excuse for non-appearance. Plaintiff proceeds to prove his case...."

An application was brought to set aside this judgment and on the 28th October, 1967, Magistrate E.A. Oshodi set this judgment of Magistrate Bamgboye aside and relisted the case for hearing. The learned trial Magistrate reheard the case and again judgment went in favour of the plaintiff/respondent.

The defendant/applicant appealed to this Court and on the 23rd October, 1969, I allowed the appeal on the legal point as to the powers given to learned Magistrates under section 47 of the Magistrates' Court (Lagos) Ordinance. I held that Magistrate Oshodi acted without jurisdiction and his judgment was a nullity with the result that the judgment of Magistrate Bamgboye still subsists. In view of the decision of my predecessor De Lestang, C.J., in Abeki v. Amboro 1961 Part II All N.L.R. 368 I propose at the end of this ruling to set out a little more fully than I did on the 23rd October, 1969, my reasons for holding that Magistrate Oshodi acted without jurisdiction.

I turn to the merits of the particular application before me which is one for an order for extension of time within which to file an appeal against the judgment of Magistrate Bamgboye of the 28th March, 1967.

The applicant seeks the exercise by this Court of its discretion in his favour by extending the period in which he may appeal from a judgment of the court below by some two years or so. To succeed in such an application very good reasons must be given warranting the exercise of such discretion on his behalf.

It seems to me that under the circumstances of this case, a Court must apply similar principles to those it would apply in an application to set aside a default judgment. One of these principles is that there ought to be an affidavit of merits or its equivalent; particularly in a case where two Courts have found against the applicant in spite of the views I have expressed about the judgment of Magistrate Oshodi.

Neither in the affidavit sworn to by the applicant on the 14th November, 1969, nor in the further affidavit sworn to by him on the order of the court on the 12th December, 1969, is there any mention of the existence of a defence or merit in such defence. It must be borne in mind that the application is not for an extension of the imte within which an application can be made to set aside the judgment of Magistrate Bamgboye but to lodge an appeal against such judgment. As I have said the proceedings show that the defendant was absent. Only the plaintiff gave evidence. There was no evidence in rebuttal and short of an affidavit of merit, or as I said its equivalent, showing prima facie substantial grounds of appeal, I am not inclined to exercise my discretion in the applicant's favour and I dismiss the motion.

I now come to consider the provisions of section 47 of the Magistrates' Court (Lagos) Ordinance. The section provides as follows:-

"A Magistrate, at the same time or any subsequent sitting of the court, may set aside any judgment or order given or made against any party in the absence of such party, and the execution thereupon, and may grant a new trial or hearing, upon such terms, if any, as he may think just, on application and on sufficient cause shown to him for that purpose."

The 1948 Magistrates' Court (Civil Procedure) Ordinance in section 76 provides for this situation in identical words with this exception that instead of the reference being made to "A Magistrate" it is to "The Magistrate." I shall not for the moment attach any importance to this difference and if need be I shall make further reference to it a little later on.

In the side note to the 1948 Ordinance we have it that that section was drawn up with section 91 of Statute 51 and 52 Victoria Chapter 43 in mind. When one turns to section 91 it will be seen that it embodies section 53(1) and 76 of the 1948 Ordinance.

In the Victorian Statute section 93 provides that:-

"Every judgment and order of the court, except as in this Act provided, shall be final and conclusive between the parties; but the court shall have ower to non-suit the plaintiff in every case in which satisfactory proof shall not be given entitling either the plaintiff or defendant to judgment. The judge shall also in every case whatever have the power, if he shall think just, to order a new trial to be held upon such terms as he shall think reasonable, and in the meantime to stay the proceedings."

The net result is that the substance and in some cases the wording of sections 53(1) and 76 of the Magistrates' Courts (Civil Procedure) Ordinance of 1948; and sections 46 and 47 of the Magistrates' Court (Lagos) Ordinance 1954 are similar if not identical with section 91 and 93 of the Victorian Statute to which I have made reference. I have gone to a little length to show this similarity inasmuch as I intend to quote authorities which have interpreted the law of England and to draw the inference that they are similarly applicable here.

I should perhaps make this reservation that whereas in England there are provisions made for obtaining judgment in default of defence; in default of answering interrogatories; in default of discovery or inspection of documents; default judgment at trial; setting aside judgment obtained in a counterclaim by default; we have only the provision for setting aside a "judgment given in absence of party" both in the High Court and in the Magistrates' Court.

The importance of this may not be realised unless one recalls that in England up to the passing of Order 14, rule 11 of the 1964 Supreme Court Rules of England the position was regulated with respect to judgments by default of appearance under Order 14, rules 1 and 5 by the decision in Spira v. Spira 1939 3 A.E.R. 924. The headnote to that case reads thus:-

"The plaintiff in an action for money lent made an application for judgment under R.S.C., Order 14, 4. 1. Owing to a mistake, the defendants' solicitor did not attend the summons, and judgment was signed. There ensued protracted negotiations, which proved unsuccessful. The defendants applied for leave to appeal out of time, but this was refused. They then applied under R.S.C., Order 27, rule 15 for leave to set aside the judgment, and contended that it was a judgment obtained by default."

Scott, L.J., approving the decision of Lord Atkin in Evans v. Bartlam 1937 A.C. 473 at 480 held that this was not a judgment by default in these words at page 927:

"Upon those facts we are asked to say, (i) that there was a default in regard to the proceedings under R.S.C., Order 14, by reason of the omission of the defendants' solicitors to take the necessary steps to appear at the hearing of the summons, and (ii) 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.

In Evans v. Bartlam Lord Atkin laid down the principles which should guide the court. Lord Atkin said in that case at p. 480:-

"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...'

Lord Wright in the same case expressed similar views. Here I think the rules were strictly followed. Lord Wright expressed the view that default proceedings ought not to interfere with justice....

I think the answer to that was that there had been no such default in the proceedings under R.S.C. Order 14 as is contemplated by R.S.C. Order 27, rule 15"...

There was no evidence heard in that case nor in Evans v. Bartlam. Du Parcu, L.J., in the former case said at page 928 that:-

"I think that absence is not a default, but I think the point should be left open, and it is not desirable to decide it finally."

In the Annual Practice, 1964, at page 211 we find the following notes to Order 14, rule 11:-

"This rule is new. It reverses SPIRA v. SPIRA 1939 3 A.E.R. 924CA and removes the anomaly that, unlike every other judgment in default or even a judgment at trial in the absence of a defendant, a judgment under Order14 in the absence of a defendant could not be set aside, though it could be appealed."

I have drawn attention to these authorities because of the grave doubts existing in my mind as to whether section 47 of the Magistrates' Court (Lagos) Ordinance and in the case of the High Court Order 40, rule 5 are wide enough to cover all judgments obtained against a defendant, regardless of his being served, and regardless of whether the judgment was obtained under the provision for default summonses under Order IV, of the Magistrates' Court Civil Procedure Rules Cap. 113 or Order III of the High Court Rules dealing with undefended suits.

It is in Order 36, rule 33 of the Rules of the Supreme Court of England that we find the provision for setting aside a judgment obtained in the absence of the defendant at the trial, and it seems to me that it is this order and rule that one must equate with the circumstances prevailing in the case before me on appeal.

The rule reads thus:-

"Any verdict or judgment obtained where one party does not appear at the trial may be set aside by the court or a Judge upon such terms as may seem fit, upon an application made within six days after the trial"

Reference is made to the case of Schafer v. Blyth 1920 3 KB 140. It will be noted that in the fact of that case no evidence was led and judgment was given "on the non-appearance of the defendant." Lush, J., who gave judgment was also the Judge hearing the application and he said at page 143 that:-

"Moreover, I think that these applications ought to be made to the judge who tried the case, and it so happened that I was not sitting on the sixth day after the trial."

Similar circumstances prevailed in the case of Burgoine v. Taylor 1878 9 C.H.D.1. In the case of Cockle v. Joyce 1877 7 Ch.D where the plaintiff did not appear and the defendants asked for judgment to be entered fro them it was so entered on their producing an affidavit of service of notice of trial. The action was heard by Fry, J., and he it was who eventually set aside the order for judgment.