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JOHN GRISBY
V.
M. S. JUBWE AND OTHERS
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
22ND DAY OF NOVEMBER, 1954
APPEAL NO. 113 of 1954
2PLR/1954/63 (WACA)
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OTHER CITATION(S)
2PLR/1954/63 (WACA)
(1954) XIV WACA PP. 637-639
LEX (1954) – XIV WACA 637-639
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
DE COMARMOND, Ag. C.J., NIGERIA,
COUSSEY, J.A.
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BETWEEN:
JOHN GRISBY – Appellant
AND
1. M. S. JUBWE
2. J. G. HOWE
3. THOMAS W. SWEN
FOR AND ON BEHALF OF THEMSELVES AND OTHER MEMBERS OF THE LIBERIAN COMMUNITY IN LAGOS – Respondents
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ORIGINATING COURT(S)
Appeal by the defendant from the Supreme Court of Nigeria
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REPRESENTATION
J. I. C. Taya — for the Appellant
R. A. Funi Kayode — for the Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
INTERNATIONAL LAW:- Consul of a foreign nation who had attended the court both on a motion and on the return date – Whether amounts to submission of jurisdiction of court
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PRACTICE AND PROCEDURE ISSUE(S)
ACTION:- Defendant not appearing at title hearing – Case with written pleadings – Judgment without evidence in claim for damages which had not been admitted – Supreme Court (Civil Procedure) Rules, Order, 40, rule 3, and Order 41, rules 1, 2, 3.
JURISDICTION:- Consul appearing on application – Consul accepting order for pleadings – Consul putting in defence claiming diplomatic immunity
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CASE SUMMARY
The plaintiffs (now respondents) sued the defendant for damages in tort. When they applied for an order to sue in a representative capacity, he appeared and opposed the application; and on the return day he appeared and pleadings were ordered; to the statement of claim he filed a defence confined to a claim to be exempt from the jurisdiction of the Court on the ground of diplomatic immunity as a consul. When the action came on for hearing the Judge gave judgment on the plaintiffs’ claim without hearing evidence. The defendant appealed, his grounds being (1) that the Judge erred in holding that he had submitted to the jurisdiction, and (2) in giving judgment without hearing evidence, and (3) in not allowing him to file a defence in answer to the allegations in foe statement of claim.
Rule 3 in Order 40 provides (briefly) that if the defendant does not appear the Court may proceed to hear evidence and give judgment on the evidence adduced by the plaintiff; and rules 1, 2, and 3 in Order 41 provide (briefly) that in a case with pleadings the party with the burden of proof shall begin and call evidence.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal and setting aside the judgment with directions given for trial) that:
(1) The defendant had submitted to the jurisdiction by appearing and opposing a motion and by accepting an order for pleadings — which made it unnecessary to decide whether as a consul he was not subject to it;
(2) The case not being one on the undefended list, the plaintiffs had the duty to prove their case; for damages are deemed to be put in issue unless expressly admitted, which they were not in this case;
(3) In the circumstances the defendant would be allowed to put in a defence and the case would then be tried.
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MAIN JUDGMENT
The following Judgment was delivered:
COUSSEY, J. A.
In this case the plaintiffs claim against the defendant £1,227 19s. 10d. as special damage and £500 general damages occasioned by the unlawful interference by the defendant with a contract of labour between the plaintiffs and Elder Dempster Lines Ltd.
Before the return date of the writ of summons, the plaintiffs moved ex parte for an order for leave to sue in a representative capacity. The defendant, however, attended the Court by counsel and opposed the application, but the order was made. On the return date of the writ the defendant attended by counsel and pleadings were ordered.
The plaintiffs’ statement of claim was filed on the 24th October, 1953. On the 3rd November the defendant filed what is headed as a statement of defence whereby he claimed to be exempted from the jurisdiction of the Court on the ground of diplomatic immunity. He did not answer the allegations of fact in the plaintiffs’ statement of claim.
On the 16th November, 1953, when the action came on for hearing the Court held that the defendant had submitted to the jurisdiction of the Court by not appearing under protest. The Court further held that the defence filed was valueless; that the averments in the statement of claim must be taken to be admitted and judgment was entered for the plaintiffs for the amount of special damage claimed, namely £1,227 19s. 10d. and costs.
The defendant appeals from this judgment.
As to the first ground of appeal, that the Court erred in holding that there was a submission to the jurisdiction of the Court, it is unnecessary to decide the point whether as Liberian Consul the defendant was exempt from the jurisdiction. As he had clearly attended the Court, both on a motion and on the return date, he had thereby submitted to the jurisdiction by opposing the plaintiffs’ motion and by accepting an order for pleadings.
As to the second and third grounds of appeal, namely that the Court erred in entering judgment for the plaintiffs without hearing evidence in a claim not on the Undefended List and, further, in not allowing the defendant to file a defence to the action in answer to the facts alleged in the statement of claim, the appeal must, in my opinion, succeed.
It should be observed in the first place that the claim is for un-liquidated or undetermined damages. Accepting that the defendant had failed to file a defence the general rule is that no denial or defence is necessary as to damages claimed or their amount. They are deemed to be put in issue in all cases unless expressly admitted.
Under English practice a plaintiff is by statute allowed, in certain cases, to sign judgment in default of pleadings but in Nigeria where the Court proceeds in default of the defendant’s attendance or of defence filed the plaintiff must produce prima facie proof of his case to the satisfaction of the Court before he is entitled to judgment, except where the action is brought on the Undefended List.
By rule 3 of Order 40 of the Rules of the Supreme Court, if the plaintiff appears and the defendant does not appear, the Court may proceed to hear the cause and give judgment on the evidence adduced by the plaintiff.
Order 41, rules 1, 2 and 3 of the Supreme Court Rules provide:-
“The order of proceedings where statements of claim and of defence have been filed is,
“The party on whom the burden of proof is thrown by the material issues as the Court may determine shall begin.
“He shall produce his evidence and examine his witnesses in chief.”
In other words the plaintiff must prove his case. An express admission may relieve him of proof in whole or in part but what is not admitted must be proved. There is no admission as to un-liquidated damages.
The Court erred therefore in entering judgment for the plaintiffs without proof and that judgment and consequential orders must be set aside, and it is so ordered.
The appeal is accordingly allowed and the case is remitted to the Court below. Having regard to the circumstances in which the defendant failed to file a defence, being of the impression that he was claiming exemption from the jurisdiction, this was not an ordinary case of default in pleading. It is therefore ordered that the defendant shall file a defence within fourteen days of the date of this judgment and that the action shall then be set down for trial speedily.
The defendant-appellant will have the costs of this appeal but the costs of all prior proceedings in the Court below to abide the result of the trial.
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DE COMARMOND, Ag. C.J.
I concur.
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FOSTER-SUTTON, P.
I concur.
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Appeal allowed; judgment set aside; directions given for trial.
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