Alhaji H.d. Kolo V. J.m.o. Oyetunde (1978) LLJR-SC

Alhaji H.d. Kolo V. J.m.o. Oyetunde (1978)

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The plaintiff in this case claimed from the defendant in the lower court the sum of N5,933.34 made up as follows:-

“(a) Special damage for breach of contract. (i) N933.34 as money paid for a consideration which has wholly failed. (ii) N800 as hotel expenses.

(b) N4200 as general damages for unlawful eviction and/or trespass and/or breach of statutory duty to provide alternative accommodation.”

The learned trial Judge, Belgore, J., (as he then was) entered judgment in favour of the plaintiff for a total sum of N2,033.30 with costs.   As at the time when the summons was taken out the defendant was not in the country, he was however represented by counsel when the order for pleadings was made. The order for pleadings was made on the 18th of July, 1975 for the plaintiff to file and serve his Statement of Claim within twenty-one days and the defendant was given forty-five days for filing and serving his Statement of Defence.

The plaintiff duly filed a Statement of Claim on the 8th of August, 1975 and the address for service reads:-   “For Service on counsel for defendant: Mr. Makanjuola, c/o Mr. G. Brown Peterside, 41, Ahmadu Bello Street, Jos.”   On the 27th of October , 1975, when this matter came before the court, the following were recorded:- “Mr. Makunjuola, holding Mr. Agbamuche’s brief: I have just received the S/C on 17/9/75 long after the number of days given plaintiff had expired. I discovered attempt was made to serve Mr. Peterside who had nothing to do with the case. I accept the service and I want the court to start counting our forty-five days from 17/9/75.”   COURT: Adjourned to the 5/11/75 for mention.

On the 5th of November, the defendant’s counsel informed the court that an application had been made for an extension of time within which to file and serve Statement of Defence. The learned counsel who represented the plaintiff did not oppose the application to extension of time and the record reads:   PAGE| 3   COURT: Case adjourned to 14th November, 1975 for mention of motion. N15 costs against the defendant. On the 14th of November, 1975, however, despite the fact that the application for extension of time within which to file the Statement of Defence was not opposed by counsel for the plaintiff on the 5th of November, 1975, the court did not indicate whether the application was granted or not but awarded costs against the defendant which normally ought to have been done if the application was granted.

On the 14th of November, 1975, the application was moved again by the counsel for the defendant but on this occasion the plaintiff appeared personally and informed the court that he has filed a counter affidavit opposing the application and alleged “that the idea is to protract this case”. Mr. Makanjuola, who held Mr. Agbamuche’s brief, informed the court that he was not fully instructed in the case and asked leave of court to withdraw appearance and the following note was made by the court:-   “Application is rejected as no sufficient reasons have been advanced for the absence of S/D. Ample time was given for defence to file S/D and up till now it is a speculative application I have before me.” The plaintiff was awarded costs of N15 again. The case was then adjourned to the 19th of November, 1975 for the plaintiff to prove his case.   On the 19th November, Mr. Obiku, holding brief for Agbamuche on behalf of the defendant, informed the court that he had received a telephone call that the defendant should please be allowed to defend the action and the following note was made:- “There is no motion before me and I do not know the law of procedure being relied upon. As such, I must get on with the business of the day on this case for plaintiff to prove his case.”

The plaintiff then gave evidence, on completion of which judgment was reserved for the following day. Judgment was accordingly delivered in favour of the plaintiff for N2033.20 with costs. We wish to observe the noted earlier on, that the order for the plaintiff to file and serve his Statement of Claim was for twenty-one days as from the 18th of July, 1975, and this period would in normal circumstances expire on the 8th of August, 1975. It was also on record as noted above, that the Statement of Claim not served until the 17th of September 1975 and the attention of the learned trial Judge was drawn to this before the court by the plaintiff on being informed of this situation to ask for extension of time within which to serve his Statement of Claim, to cover the period after the 8th of August, 1975.

The position, therefore, in this, that when the learned trial Judge decided to hear the case, there was no Statement of Claim properly hear the case, there was no Statement of Claim properly before him and therefore no issues on which he could base his judgment. All the evidence of the plaintiff went to no issue and the judgment therefore, being based on a Statement of Claim, which for the purpose of the case was not properly before the Judge, cannot be regarded as a judgment in the case.   On appeal before us, learned counsel submitted the point that accepting that the statement was properly before the court, the application for extension of time should have been granted:-

(a) It was made only six days after the Statement of Claim was served on the Defendant’s Solicitor;

(b) The defendant was out of the country; and

(c) The regularity of a Statement of Claim served after the expiry of the period when it should have been done should have been determined.

Unfortunately, in this case, it does not appear that the learned trial Judge took cognisance of the fact that although the Statement of Claim was filed, service was not effected until the 17th of September 1975. There was need to regularise the position. When this matter was pointed out to the learned trial Judge on the 27th of October, 1975, when the application for extension of time to file Statement of Defence was made, the learned trial Judge in exercising his discretion should have taken into consideration the several matter we have referred to. We are in no doubt that if he had done so, he would have held either that there was no Statement of Claim properly before him and therefore could not entertain an application for extension of time to file a defence, or, on the other hand, regularise the position by extending the period to serve the statement of Claim to 17th of September 1975 and grant the defendant forty-five days or such period as may be requested by the defendant to file and serve his defence. If the learned trial Judge had done these two things, he might be said to have exercised his discretion in the matter before him. As it is, this was not done, and with the greatest respect to the learned trial Judge, we do not think in the circumstances of this case he had exercised his discretion judicially.

The judgment of the learned trial Judge, in relation to the Statement of Claim before him for the reasons we have given above, cannot be held to be valid. As at the stage when the plaintiff gave evidence there was no proper Statement of Claim before the court and so his evidence went to no issue for which a judicial determination was required. In the circumstance, there was no trial according to the Rules of Court.

It is for this reason that we allowed the appeal, set aside the judgment of the court in Suit JD/46/75 delivered on 20/11/75 and ordered that the case be remitted to the Plateau State High Court for a trial de novo. The new trial should be before another Judge. The Judge who is to try the case should take into consideration the several matters to which we have drawn attention above and see that the case is expeditiously disposed of after the close of pleadings. These are our reasons for the order we made when the appeal was allowed on the 23rd of January, 1978.

Other Citation: (1978) LCN/2128(SC)

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