Bank Of The North Ltd Vs Intra Bank S.A (1969) LLJR-SC

Bank Of The North Ltd Vs Intra Bank S.A (1969)

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This is an appeal against the ruling of Holden J. in an application before him in the High Court of the Kano Judicial Division setting aside a final judgment entered by him on 24th January, 1967, in an action brought by the plaintiffs/appellants by way of a specially indorsed writ under Order 3, rules 9-14 of the High Court (Civil Procedure) Rules. The Writ of Summons reads as follows:-

“The plaintiffs’ claim is for money payable by the defendants to the plaintiffs for money lent or deposited by the defendants who acted as bankers for the plaintiffs and for money paid by the plaintiffs for the defendants as bankers or agent for the defendants at its request, and for interest upon money due from the defendants to the plaintiffs and fore-borne at interest upon money due from the defendants at its request and money found to be due from the defendants to the plaintiffs”.

Particulars of the claim were then set out. The writ was filed on 5th December, 1966, supported by the usual affidavit that the amount was due to the plaintiffs and that the defendants had no defence to the action. On the same day, namely 5th December, 1966, a motion to serve the defendants’ outside jurisdiction and at the head office of the defendants in Lebanon was heard and granted. The case was called again on 19th December, 1966, but as there was no report of service on the defendants, the matter was adjourned till 24th January, 1966. On that date, it was proved by affidavit that the defendants had been served but there was no appearance. Plaintiff’s counsel asked for judgment and on that date judgment was entered in favour of the plaintiffs/appellants for £406, 719 with interest at 8’/, per annum as from 1st December, 1966 with 100 guineas costs. On the 25th January, 1966, leave was granted for execution to proceed and it was ordered that the judgment/debtors be restrained from making a transfer of any dividends in respect of all shares held by them in the plaintiff’s company. At the same time the plaintiffs as judgment/creditors proceeded to levy execution upon shares held by the defendants (judgment/debtors) in the Bank of the North (plaintiffs) which were sold by public auction by the Deputy Sheriff and they were purchased by the Northern States Marketing Board for the sum of £486,283.12s.3d. Thus the plaintiffs deducted in all a sum of £407,099 due to them as judgment debt and costs. The balance was later paid out under other guarantee orders. Although it makes no difference whatever to the matter, it is as well to state, at this stage, that the Intra Bank S.A. does not exist, and has no branch, in Nigeria. The headquarters is in Beirut with some branches all over the world. At the material time, the Bank had closed its doors to business in Lebanon where there was a state of uncertainty and the London branch was in court under a petition for winding up. Now, about five months after judgment had been entered in favour of the plaintiffs, and indeed on 29th June, 1967, the defendants filed a motion for an order that the judgment entered in their absence on 24th January, 1967 to set aside and that the defendants/applicants be granted leave to defend the action and that all monies recovered by the respondents under the judgment or otherwise the property of the defendants be repaid to them. After a most acrimonious legal battle, the judge ruled that he had no jurisdiction to have entertained the claims before him or to have allowed service of the writ outside the jurisdiction of the court.

Thus the learned judge on 13th April, 1968, set aside his judgment given in favour of the plaintiffs on 24th January, 1967. No consequential orders were however then made concerning the execution which had been levied. It is from the order setting aside the judgment on the undefended list that the plaintiffs have now appealed. Ten grounds of appeal were filed but after hearing the first two grounds of appeal, namely grounds 1 and 2, the court decided to hear the respondents’ counsel’s reply. Further arguments were then postponed to consider if it will be necessary for the Court to hear counsel on the other grounds of appeal. Having decided that it would not be necessary, we now proceed to give our views on the matter. The two grounds of appeal argued are as follows:-

“1 The learned judge had no jurisdiction to hear and allow an application to set aside the final judgment entered on the merits in favour of the plaintiff/appellant on 24th January 1967 in an undefended action brought under Order 3, rules 9 to 14 of the High Court Cap. 211 Laws of Nigeria 1948 which in effect was also a consent judgment, on a motion of notice brought by the defendant/respondent when the correct procedure should have been by writ of summons.

2. The learned judge erred in law when he said in his ruling “I have already held that under Order 14, rule 11 Rules of the Supreme Court I have to hear this application”, when the said English Order was and is inappropriate and inapplicable to the application before the court since the preliminary requirements which are conditions precedent in the English Order form no part of the Nigerian Order 3 rules 9 to 14 inclusive, Cap. 211 High Court Rules, Laws of Nigeria 1948. The conditions precedent referred to in the English Order are: (a) the defendant must have entered an appearance, and (b) the statement of claim must be or have been served on the defendant.” Now, it is not in dispute that the Rules of Court in force in the Northern States are the Rules of Court contained in Vol. X of the Laws of Nigeria 1948: There is therefore no dispute about the regularity of taking out a writ of summons under what is known as the undefended list: This is provided for under Order III, rules 9 to 14 of these Rules.

The object of these rules is for a quick despatch of certain types of cases, e.g. debt or liquidated money demand. The rules of court (9-14) governing the undefended list are as follow:-

“9 Whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt or liquidated money demand and such application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there is no defence thereto, the court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the ‘Undefended List’, and mark the writ of summons accordingly, and enter thereon a date for hearing suitable to the circumstances of the particular case.”

“10. There shall be delivered by the plaintiff to the registrar upon the issue of the writ of summons as aforesaid, as many copies of the “above-mentioned, affidavit as there are parties against whom relief is sought, and the registrar shall annex one such copy to each copy of the writ of summons for service.”

“11. If the party served with the writ of summons and affidavit delivers to the registrar, not less than five days before the day fixed for hearing, a notice in writing that he intends to defend the suit, together with an affidavit setting out the grounds of his defence, then and in such case the suit shall be entered in the general list for hearing.”

“12. Where any defendant neglects to deliver the notice of defence and affidavit, as described in the last preceding rule, within the time fixed by the said rule, the court may at any time before judgment is entered, on an affidavit disclosing a defence on the merits and satisfactorily explaining his neglect, let in the defendant to defend upon such terms as the court may think just.”

“13. Where any defendant neglects to deliver the notice of defence and affidavit, prescribed by rule 11, within the time fixed by the said rule, and is not let in to defend in accordance with the provisions of rule 12, then and in such case, the suit shall be heard as an undefended suit, and judgment given thereon, without calling upon the plaintiff to summon witnesses before the court to prove his case formally.”

“14. Nothing herein shall preclude the court from hearing or requiring oral evidence, should it so think fit, at any stage of the proceedings.” It will be observed that there are no provisions made in Order III for the setting aside of any judgment obtained on the above rules. Mr. Noel Gray for the appellants on this point submitted that the High Court therefore has no jurisdiction to entertain any application by way of Motion to set aside its judgment entered under the “Undefended List”.

Mr. Horn for the respondents, however, contended that as Order III, rules 9 to 14 governing cases on the undefended list is silent in regard to setting aside of judgments obtained, the Court should invoke sec. 35 of the Northern Nigeria High Court Law which reads as follows:-

“35. Subject to the other prov

Other Citation: (1969) LCN/1723(SC)