Alhaji Haruna Kassim V Hermann Ebert (1966) LLJR-SC

Alhaji Haruna Kassim V Hermann Ebert (1966)

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ADEMOLA, C.J.N.

The defendant has appealed to this Court against the judgment of Bello, Acting Judge in the High Court of Northern Region, for the sum of £1,873-12s-6d, and £7-3s-0d costs entered against him for goods sold and delivered.

The issue argued on appeal raises a novel point which has not hitherto, as far as we are aware, come up for decision in our courts. The facts before the learned judge are briefly as follows: the plaintiff sold goods to the defendant on credit in March and May 1957. As they were not paid for, the plaintiff, on the 20th December 1962, sued for the recovery of the amount of £1,929-17s-6d. Pleadings were ordered on 18th January 1963; the plaintiff was ordered to file his Statement of Claim within 40 days and the Statement of Defence to be filed by the defendant 40 days thereafter.

On the 31st May, 1963, at the instance of counsel for the plaintiff, who was unable to file a Statement of Claim for lack of instructions from his client, the court made the following order-

“Claim struck out with liberty to apply for relisting without payment of further summons fee.”

On 4th December, 1963, a motion was filed by plaintiff’s counsel praying that the suit be relisted, which prayer was on 13th December, 1963, granted. A fresh order was made for the Statement of Claim to be filed within 3 weeks and the Statement of Defence 4 weeks thereafter. The pleadings were duly filed, and in paragraph 7 of the Statement of Defence, the defendant raised the issue that the claims were statute barred. The only important point argued in this matter in the court below, and indeed in this Court, on behalf of the defendant, was that when the suit was relisted on 13th December, 1963, the claims have become statute barred since the cause of action arose in March and May 1957 respectively. The order made on 13th December, 1963, granting “liberty to relist,” it was contended, must be interpreted to mean liberty to relist within the time allowed by law; and as the action has become statute barred, the judge had no power to have made the order to relist. The action was already dead, it was submitted, and the order of 13th December, 1963, or for that matter, any order, could not revive it.

For the plaintiff, it was argued that the case relisted on 13th December, 1963, is the case which has been on the list of the court bearing the same suit number, and it cannot be regarded as a new suit.

The first question which comes to our mind is this: has a judge power to strike out a suit with liberty to apply for a relist? It is clear that under Order 40, Rules of the old Supreme Court, which is still applicable in Northern Nigeria, a judge has discretion in striking out a case before it; and under Order 40, rule 6, “any cause struck out may, by leave of the court, be replaced on the cause list on such terms as to the court may seem fit.”

What then was the effect of the order made by the judge in the instant case? It appears to us that the true meaning of the order was that the case be discontinued as from the date of the order, but to be kept on the general list of the court and could be brought back to the hearing list after an application to the court had been made and granted accordingly.

When therefore the learned judge on 31st May, 1963 ordered that the case be struck out with liberty to apply for it to be relisted, the case, in our view, still subsists until an order is made for it to be put on the hearing or cause list. It is our view therefore that it is a pending cause which has been relisted in this case. As Lord Jessel, M.R., put it in Re Clagett’s Estate, Fordham v. Clagett (1882) 20 Ch.D. 637 at 653, “A cause is said to be pending in a court of justice when any proceeding can be taken in it. That is the test. If you can take any proceeding it is pending.”

We therefore find it difficult to see how the claims can be said to be statute barred, and we think the learned trial judge was right to have rejected this plea.

The appeal will therefore be dismissed with costs assessed at 30 guineas.

Other Citation: (1966) LCN/1348(SC)