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J. A. SIJUADE
V.
G. A. TIJANI
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
26TH DAY OF OCTOBER, 1954
W.A.C.A. NO. 107/1954
2PLR/1954/88 (WACA)
OTHER CITATION(S)
2PLR/1954/88 (WACA)
(1954) XIV WACA PP. 611-612
LEX (1954) – XIV WACA 611 – 612
BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
JIBOWU, Ag. S.P.J., NIGERIA
BAIRAMIAN, J.
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BETWEEN:
J. A. SIJUADE – Appellant
AND
G. A. TIJANI – Respondent
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ORIGINATING COURT(S)
Appeal against a decision of Supreme Court (Abbott, J., Presiding) by defendant (interlocutory)
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REPRESENTATION
A. Ogunsanya — for Appellant
D. O. A. Ogunboye — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
NA
PRACTICE AND PROCEDURE ISSUE(S)
PLEADINGS:— Time for delivery of defence— Application for more time— Principles on which it is granted.
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CASE SUMMARY
Under the order made for pleadings the defence ought to have been delivered by a certain date but was not. The defendant applied for more time on an affidavit that he had been ill and unable to give instructions for his defence, but did not say what his defence was or whether he was advised that he had a good defence. When his motion came up, his counsel stated that the defence was ready, but the Judge thought that the defendant if ill could have asked his solicitor to see him, and dismissed the motion. The Judge gave leave to appeal on terms, which the defendant fulfilled; one was to pay into Court the amount of the claim. In the appeal counsel for the defendant stated that there was a good defence and asked for leave to file a better affidavit; leave was given; a better affidavit was filed. In the Court- below judgment had not been entered against the defendant.
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DECISION(S) FROM THE CAUSE(S) OF ACTION
Held:
A satisfactory affidavit having been filed to show that the defendant ought to be allowed to have the dispute determined upon the merits; as judgment against him had not been entered, he would be given more time for filing his defence so as to have a trial on the merits.
Case followed:-
(1) Collins v. Vestry of Paddington, 1879-80, 5 Q.B. 379.
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MAIN JUDGMENT
The following judgment was delivered:
FOSTER-SUTTON, P.
This is an appeal against a decision of Abbott, J., refusing an application by the defendant for an extension of time within which to file his defence.
The civil summons was filed by the plaintiff in the Supreme Court of the Ibadan Judicial Division on the 3rd day of November, 1952, and the order directing pleadings, giving the plaintiff fourteen days in which to file his statement of claim and the defendant fourteen days thereafter in which to file his defence, was made on the 20th November, 1952.
The statement of claim was filed on the 2nd December, 1952, and the last day for filing the defence was, therefore, 16th December, 1952.
On the 4th February, 1953, the defendant filed a motion asking for an extension of time within which to file his defence. This motion was withdrawn, and on the 13th February, 1952, the defendant filed another motion in identical terms. The defendant’s affidavit filed in support of the motion merely stated that “Shortly after my solicitor informed me of the service of the statement of claim on him I was laid up with my usual complaint of asthma for a considerable time, and was unable to instruct my solicitor of my defence in the matter “. Nothing was said as to whether he was advised that he had a good defence to the action or what the defence was.
The motion came for hearing before Abbott, J., on the 17th March, 1952, when defendant’s counsel informed the Court that the defence was ready for filing; it had in fact been filed out of time on the 2nd February, 1953. The plaintiff’s counsel opposed the application and the learned Judge made the following order:-
“If defendant sick with asthma he could have asked his lawyer to go and see him. The grounds for the application are inadequate and the motion must be dismissed with £3 3s. 0d. costs.”
Pursuant to an application made by the defendant in that behalf, special leave to appeal against the order was granted by Abbott, J. The affidavit in support of the motion for special .leave to appeal disclosed nothing new, and when granting leave the learned Judge made the following observations:
“I am by no means satisfied of the defendant’s sincerity in this matter. The affidavit in support of the motion is meagre and of little substance. It gives no dates and these are important. There is no medical evidence, which is equally important. Defendant has really done nothing to entitle him to sympathy from this Court. Nevertheless I will give him one more final chance. He may have the leave for which he asks on the following conditions.”
One of the conditions (all have been fulfilled) required the defendant to pay into Court the full amount of the claim. The principles which should guide the Court when dealing with applications for an extension of time to do anything required in the course of an action are clearly laid down by Bramwell, L. J ., in the case of Collins v. Vestry of Paddington (1), and are as follows:- If the mistake, error, or carelessness of the applicant has been real and unintentional, and no damage has been done to the other side that could not be repaired by payment of costs or otherwise, the application should be granted. If, on the other hand, it appears to the Court that the occasion for the application is wilful or mala fide, or that the application itself is, or that the granting of the application would cause irreparable hurt to the other side, it should be refused.
When the case came before this Court learned counsel for the appellant agreed that, in the circumstances here, the affidavit filed in support of the application for an extension of time left a lot to be desired and ought to have averred that the defendant was advised that he had a good defence to the action, which he stated to be the case, and he asked leave to file an affidavit which he stated would satisfy this Court that the defendant ought to be allowed to have the dispute determined upon the merits.
Leave was granted provided the affidavit was filed on or before the 23rd October. The affidavit has now been filed and since judgment has not yet been entered for the plaintiff I would, on the facts now alleged in the affidavit, grant the defendant fourteen days from the date of this judgment within which to file his defence, thus giving him a final opportunity of having the dispute determined on its merits; and since no blame can fairly attach to the plaintiff-respondent I would make no order as to costs on this appeal.
JIBOWU, AG. S. P. J.
I concur.
BAIRAMIAN, J.
I concur.
Order: That part of the order of Abbott, J., dated 17th day of March, 1954, refusing the defendant an extension of time within which to file his statement of defence is hereby amended, and the defendant is granted fourteen days from the 26th day of October, 1954, within which to file his defence. We make no order as to costs of this appeal.
Time for filing defence extended.
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