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Farid Khawam V. Fouad Michael Elias (1960) LLJR-SC

Farid Khawam V. Fouad Michael Elias (1960)

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This is an appeal by the defendant against the order of the High Court of the Western Region holder at Ibadan, made on the 21st August, 1959, entering judgment for the plaintiff “on his claim against the defendant.” This order was made on a Motion on Notice for judgment to be entered for the plaintiff in default of the filing of a Statement of Defence.

Chief Rotimi Williams, Q.C., and Miss Grant appeared for the appellant, and Chief H. O. Davies and Mr. Adewunmi for the respondent.

It is necessary for the purposes of this judgment to go into certain matters of the history of this case, beginning with the nature of the claim advanced by the plaintiff in his Writ. This reads as follows:-

“The Plaintiff seeks as against the Defendant a Declaration that he is entitled in equity to the property known as 21 Lebanon Street, Ibadan, Western Region of Nigeria, for the residue unexpired of the term created by a Lease dated the 31st day of October, 1945 and registered as No. 28 at Page 28 in Volume 680 of the Lands Registry in the office at Ibadan.

The said Lease was made between Mrs. Flora Atunwaola Soetan, Dr. Henry Aremu Aderonmu Doherty and Mrs. Rosaline Adetutu Snares as Lessors and the Defendant as Lessee with effect from the 1st day of February, 1944 for a term of 40 years and the term was later extended by a further period of 30 years.

On the 12th June, 1954, the Defendant borrowed from the Plaintiff the sum of £10,000:0s:0d and agreed with the Plaintiff to have the repayment thereof secured by a Mortgage of the residue unexpired of the said term.

The Plaintiff further claims possession of the said premises No. 21 Lebanon Street, Ibadan, Western Nigeria, for the residue unexpired of the said term.”

Concurrently with his application for the Writ the plaintiff applied for an order that the Writ of Summons be served upon Alfred Khawam, described in the Notice of Motion as the agent of the defendant, and that such service be deemed sufficient service on the defendant.

The Motion was supported by an Affidavit, of which paragraph 2 reads as follows:–

“That the Defendant borrowed from me the sum of £10,000-Os-Od upon having the repayment secured by a mortgage on the residue unexpired of the Lease of the property at 21 Lebanon Street, Ibadan, dated 31st October, 1945 and registered as No. 28 at Page 28 in Volume 680 of the Lands Registry in the office at Ibadan and made between Mrs. Flora Atunwaola Soetan, Dr. Henry Aremu Aderonmu Doherty and Mrs. Rosaline Adetutu Soares as Lessors and the Defendant as Lessee.”

Paragraph 4 of the Affidavit avers that the defendant was then outside the jurisdiction of the Court, being away from this country, and that letters sent to him at his address in Germany had neither been acknowledged nor returned to the plaintiff. Paragraph 5 states that Alfred Khawam collects rents on behalf of the defendant and that Alfred Khawam must therefore be aware of his present address; and paragraph 6 states the belief that if the Writ is served on Alfred Khawam the same will come to the knowledge of the defendant. The order for substituted service was thereupon made and while there is on the record no Affidavit of service it appears that when the matter came before the Ibadan High Court on the 9th December, the Court was satisfied that service had been effected, presumably upon Alfred Khawam.

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On that occasion pleadings were ordered and a Statement of Claim was duly filed. For reasons which will afterwards appear, it is important to set out paragraph 5 of this Statement of Claim, which reads as follows:-

By an Indenture dated the 12th June, 1954, and made bet-ween the plaintiff as ‘Lender’ and the defendant as ‘Borrower’, the defendant acknowledged the receipt of £10,000 lent to him by the plaintiff and secured the repayment of the said sum by a Sub-Lease of portion of the parcel referred to in paragraph 3 above for the residue unexpired of the term expressed in the said lease.”

The “parcel referred to in paragraph 3” is, in fact, 21 Lebanon Street, Ibadan.

That the Statement of Claim was served upon Alfred Khawam is shown by an Affidavit by one of the Solicitors to the plaintiff, filed in support of the Motion for Judgment in default of Defence, which it is common ground had not and never has been filed, as yet. The Motion paper states the Motion purports to be brought “under Order 2 Rule 11 (Sheriffs and Civil Process

Ordinance).” This is a misdescription, what was meant apparently being Order II Rule 12 (b) of the Judgment (Enforcement) Rules, which reads as follows:–

“(b)    if a defendant in any suit makes such default or failure the court may give judgment by default against such defendant, or make such other order as to the court may seem just. But any such judgment by default may be set aside by the court upon such terms as to costs or otherwise as the court may think fit.”

After sundry adjournments due to there being no evidence of service of this Notice of Motion for judgment, the matter ultimately came before the Court on the 21st August, 1959, as did a further Motion on Notice filed by the Solicitor for a man named Joseph Saliba, in which this individual asked to be joined as a co-defendant with the defendant. The defendants address on this Notice of Motion is given as c/o Joseph Saliba (the person mentioned above) 68 Oluwole Street, Lagos, and the address of Joseph Saliba is given as c/o his Solicitor, A. Okubadejo, Co-operative Bank Building, Ibadan. The two Motions were heard together by Quashie-Idun, J., (as he then was). Before the learned Judge there appeared Mr. Bolarinwa holding the brief of Chief H.O. Davies, Q.C., for the plaintiff, and Miss Grant for the defen-dant, and it appears from the record that Miss Grant also appeared for the applicant Joseph Saliba, who desired to be joined as a co-defendant. After hearing argument the learned Judge refused the application for joinder but granted the prayer of the plaintiff’s Motion and entered judgment for the plaintiff on his claim against the defendant, with costs assessed at 45 guineas, and the formal order was drawn up in exactly the same words as appear in the learned Judge’s notes. The important portion of the formal order reads as follows:–

“The motion of the plaintiff is allowed and judgment is entered for the plaintiff on his claim against the defendant. Costs for plaintiff assessed at 45 guineas.”

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Ten days later, on the 1st September, 1959, Mr. Okubadejo, as Solicitor for the defendant, filed a Motion on Notice praying the Court to re-list the suit and to set aside the order made on the 21st August, 1959, and this application was supported by an Affidavit which in its first paragraph discloses that the deponent, who is Alfred Khawam, previously referred to in this judgment as agent of the defendant, held a Power of Attorney by virtue whereof, according to him “I am the Lawful Attorney of the defendant in the above suit.” It is also important to mention that this Power of Attorney was registered in the Ibadan Lands Registry and its existence could therefore have been ascertained by the plaintiff by making a search there.

In passing I may point out that had this elementary step been taken, no doubt the plaintiff would have sued the defendant through Alfred Khawam as his lawful attorney.

In any case it seems to me that there could have been no objection, unless of course it were raised by Alfred Khawam, to suing him as agent for Farid Khawam, the defendant, or suing Farid Khawam “through his agent Alfred Khawam.” It has been within the knowledge of the plaintiff for a very long time, first that Farid Khawam was out of Nigeria, and, as one gathers, that he is unlikely ever to return to this country, and secondly, that Alfred Khawam was his agent. Had one of the two courses mentioned above been adopted, most of the trouble and expense which has now been occasioned would have been avoided.

I now return to the Affidavit of Alfred Khawam in support of the Motion to re-list the suit and set aside the order of the 21st August,1959. The second paragraph admits service of the Writ upon the deponent as the agent of the defendant, and paragraph 3 discloses that Alfred Khawam knew of the order for pleadings made on the 9th December, 1958. The Affidavit then goes on to detail various journeys on business, made by the deponent, until paragraph 8 is reached, and that avers that the deponent required instructions from the defendant personally, to enable him to instruct a Solicitor to file a Statement of Defence, and that from February to July 1959 the deponent made repeated efforts, in vain, to get in touch with the defendant. Paragraph 9 states that the deponent had finally succeeded in obtaining instructions from the defendant and avers the belief that he had a good Defence to the plaintiff’s claim. This paragraph also exhibits the proposed Statement of Defence.

Pausing here for a moment, I cannot help pointing out that no instructions from the defendant personally would have been necessary to enable Alfred Khawam to instruct a Solicitor to ask for an extension of time within which to file the Defence, and why this was not done passes my comprehension. It would seem from the contents of the Affidavit to which I last referred above, that there were at least reasonable grounds for such an application. Be that as it may, no such application was made. The defence exhibited to the Affidavit last above referred to does very little more than traverse the paragraphs of the Statement of Claim which contain the basis for the action. Paragraph 4 of this proposed Defence avers that “there never have been at any time any valid monetary transaction between the plaintiff and the defendant secured upon the defendant’s property situate at 21 Lebanon Street, Ibadan, or any part of the said property.”

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The Motion to re-list the case and set aside the order of the High Court came before that Court on the 5th January, 1960, when Mr. Okubadejo appeared for the defendant/applicant. It was apparently part of Mr. Okubadejo’s submission that the plaintiff should have been called to give evidence, even though the defendant had failed to file his Defence, before judgment was entered for the plaintiff, but on this point the learned Judge did not find it necessary to hear Counsel for the plaintiff/respondent, and in giving his decision on the Motion he used these words:-

“There is no substance in this application. 1 see no grounds disclosed in the affidavit upon which I can exercise my discretion in granting the application. It is accordingly dismissed. Costs for respondent assessed at £10-10s-0d to be paid by the deponent.”

The formal order repeats those words.

The appeal with which this Court is concerned is, as I have above indicated, against this decision of Quashie-Idun, J., not against, I would point out, the order entering judgment for the plaintiff. Again, why no appeal was lodged against that order I utterly fail to understand.

The omissions to appeal against that order had repercussions when Chief Rotimi Williams proceeded to argue this appeal before us, because certain of the grounds of appeal sought to be argued raise matters which in our view could only have been raised on an appeal agains

Other Citation: (1960) LCN/0846(SC)

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