Failure to File Statement of Defence« Back to Previous Page

A defendant who fails to file a statement of defence where the plaintiff calls evidence does not lose his right to address the court before pronouncement of judgment in the matter. Such a defendant is still entitled to address the court. He also has the option of relying on point of law without necessarily filing pleadings. The simple underlining issue here is whether by virtue of the Relevant Rules of the Court and its Practice Direction 2010, the Appellant who did not file a statement of defence is entitled to address the Court. Orders 25 Rule 2 and 27 Rule 2 of the Kano State High Court (Civil Procedure) Rules which the learned Respondent’s Counsel argued apply to the facts of this case and which do not entitle the Appellant to address the Court provide thus: ”25 (1) Subject to paragraph (2), a defendant who enters an appearance in, and intends to defend, an action shall, unless the Court gives leave to the contrary, serve a defence on the plaintiff before the expiration of 30 days after the statement of claim is served on him.” ”27 (1) If the plaintiff’s claim be only for a debt or liquidated demand; and the defendant does not, within the time allowed by these rules or an order of Court or a Judge in Chambers for that purpose, file a defence, the plaintiff may, at the expiration of such time, apply for final judgment for the amount claimed, with costs.” While Order 25 Rule 2(1) provides for the time line within which a defendant who enters appearance is required to file and serve his statement of defence on the plaintiff, Order 27 Rule 2 (1) provides for the consequence of failure to so file the defence within the prescribed or permitted time. It is clear by the provisions of Order 27 Rule 2 (1) above reproduced, where a defendant in an action for recovery of debt or liquidated money demand fails to file and serve his defence on the Plaintiff, the plaintiff may at the expiration of the time allowed by the Rules or as ordered by the Court, apply for final judgment of the amount claimed. In other words, reading together Order 25:2 and 27:2, where the defendant fails to file and serve on the plaintiff a statement of defence at the expiration of 30 days from the receipt of the Plaintiffs statement of claim or such time as may be allowed by the Court, the defendant may apply to the Court for final judgment. However, for the plaintiff to obtain judgment under this Rule, he must satisfy all the necessary preconditions embedded in the Rule namely, (i) that there is default of defendant’s pleadings; (ii) that judgment sought is on default of pleadings and not on merit; and (iii) that he makes an application to the Court for final judgment. Such application, it is needless to stress must be by way of a motion on Notice to be served on the defendant to afford him an opportunity to react if he desires to oppose the application. These three (3) preconditions are conjunctive and not disjunctive. The absence of any of the 3 conditions disentitles the applicant to the invocation of this Rule. Implicit in these is that for a Plaintiff to apply for or the Court to give judgment pursuant to Order 27 Rule 2, the defendant must not only have defaulted in filing a defence, the plaintiff must have moved the Court by an application by way of motion on Notice served on the defaulting defendant and when he (the plaintiff) has not adduced any evidence. Once evidence is adduced, judgment obtained upon evidence is no longer default judgment, but judgment on merit. It follows that the correct interpretation of Order 27 Rule 2 by the golden rule of interpretation of clear and unambiguous words, is that a plaintiff may apply for final judgment in an action for recovery of debt or liquidated money demand where there is default of the defendant’s pleadings, and the plaintiff adduces no evidence. Once evidence is adduced, judgment obtainable ceases to be judgment on default of pleadings, but judgment on merit. In the case at hand, the undeniable fact that evidence was adduced by the Respondent whose ipsi dexit and documentary evidence tendered were evaluated by the Court, found to be unchallenged and relied upon, removes the case from that envisaged by Order 27 Rule 2 (1). It takes it away from judgment given merely on default of pleadings. Furthermore the absence of the requisite application for default judgment further takes away the facts of this case from the situation envisaged by Order 27 Rule 2. Thus where as in the present case the Respondent adduced evidence and tendered several exhibits which were evaluated by the lower Court the provision of Order 27 Rule 2 becomes inapplicable. What then is the applicable provision where at the close of the case the plaintiff calls evidence but the defendant does not call any evidence? The answer is found in paragraphs 1 and 2 of part A of the Kano State Practice Directions, 2010 as follows: ”1. Upon the close of the case for the parties in a suit, the suit shall be adjourned for final addresses to such day as the Judge may direct. 2. Where the other party does not call evidence at the trial, the party beginning shall within two (2) weeks after the close of evidence file and serve a written address on the other party. The other party shall within two (2) weeks file and serve his own written address.” It is clear that paragraph 2 envisages a situation as in the case at hand where the defendant does not call evidence but the plaintiff calls evidence. The plaintiff who called evidence shall within two weeks after the close of the evidence, file and serve a written address on the other party, that is the defendant. Thereafter, the defendant shall then file and serve his own written address. Paragraph I puts it beyond any argument that upon the close of the case for the parties the case shall be adjourned for addresses. Whenever the word ”shall” is used in a statute or Rule of Court it denotes a command; a mandate, an obligation, and leaves no room for permissiveness, deviation or discretion…. What stands out clear and tall from the provisions of paragraph 2 and 4 of the Practice Direction is that a defendant who fails to file a statement of defence where the plaintiff calls evidence does not lose his right to address the Court before pronouncement or delivery of judgment in the matter. Such a defendant is still entitled to address the Court. He may decide to rely solely on point of law in the case presented by the plaintiff without necessarily filing his pleadings. He may even decide to rest his case on that of the plaintiff. See FALADU V KWOI (2003) 9 NWLR (PT. 826) 643 AT 657. Indeed the right of parties to make final addresses is a constitutional right. Section 294 (1) of the Constitution vests in the parties the right to address the Court after conclusion of evidence and before the delivery of judgment…. This embedded right of final address of Counsel has been judicially given effect to by the Apex Court in several decisions to the effect that the denial or refusal of the right, to a party entitled to it, for no just cause amounts to an infraction of the party’s right of fair hearing and any decision therein reached will be vitiated and rendered a nullity. The reason for this is not far fetched. Address of Counsel not only forms part of the case but plays an important role in the mind of the Court in arriving at a just decision of the matter. See the holding of Belgore JSC in OBODO VS OLOMU (1987) 3 NWLR (PT. 59) 111 AT 121. See also BENARD OKOEBOR VS POLICE COUNCIL & 2 ORS (2003) 6 SC 13 AT 34 – 35. The beneficial effect of an address of Counsel on the mind of the Court cannot be overemphasized or quantified. Its utilitarian value, depending on its quality, in assisting the Court in arriving at a just decision is unquestionable because its absence can tilt the balance of the Judge’s judgment. So important is it that the denial or refusal of it cannot be regarded as a mere irregularity as pointed out by Belgore JSC in the same OBODO VS OLOMU’s case (Supra) where the law lord said: ”The procedure whereby the parties to a case at the conclusion of evidence are to address the Court on the evidence before the Court, enumerating the issues canvassed and adverting to the law governing the issues has taken such a root in our Superior Courts that the denial of it cannot be regarded as mere procedural irregularity. Just as a party is not compellable to give evidence to prove his case so is a party not compellable to address the Court where he has the right to do so. But where the right exists, a party must not be denied that right and the denial of the right may render the proceedings a nullity if miscarriage of justice is occurred.” In the instant case, I agree with the Appellant’s Counsel that the need for Appellant’s final address was even more pertinent his application for extension of time to file his statement of defence having been unsuccessful. The only opportunity the Appellant had was the medium of the final address to draw the Court’s attention to the legal issues connected with or afflicting the evidence adduced by the Respondent. Had the Appellant’s Counsel been afforded the opportunity to address the Court, he would have canvassed and drawn the Court’s attention to the issues of the inadmissibility of Exhibit B9 which the Court heavily relied upon to grant the Respondent’s reliefs same having, as contended, being produced in anticipation of proceedings in contravention of Section 83 (3) of the Evidence Act, and that the Respondent is not even entitled to the claim on Exhibit B9 since payment of the legal fees was dependant on the recovery of the debt which the Respondent did not recover. He would also have been able to ventilate his argument before the lower Court, on the propriety of awarding double compensation as argued in his brief. I cannot agree more, that the denial of the right of address which could have afforded Counsel the opportunity to canvass legal argument and draw the Court’s attention to the legal issues raised in his brief, amounts to denial of Appellant’s right of fair hearing and occasioned a miscarriage of justice against the Appellant, which in turn vitiated the trial rendering the entire proceedings a nullity.” STERLING BANK v. OYOYO (2018) LPELR-46748(CA) (Copied)