National Development Bank v. James International Co Ltd (CC456/99 1999 N NO. 14) [2007] SLHC 28 (25 May 2007);

CC456/99   1999     N NO. 14





PATRICK LAMBERT                                    - For The Plaintiff / Respondent

ABDUL FRANKLYN SERRY- KAMAL       - For The Defendants /Applicants


D.B. EDWARDS, J. By Notice of Motion dated 23rd March , 2007 made under action intituled CC456/99 N NO. 14, the Defendants in this action, attempted to apply to this Honourable Court to

1. Set aside the Order made by this Court on the 16th of March 2007 and all subsequent proceedings thereto and to restore the action .

2.Stay execution of the Judgment entered against the defendant on the 16th March 2007, pending the herein and determination of this application.

In support of this Application was the Affidavit of Abdul Franklyn Serry Kamal sworn to on the 23rd day of March 2007 together with the exhibits referred therein. He relied on the entire affidavit. The plaintiff opposed the Application.

The issue before this court is whether this court ought to, in view of the affidavit sworn to by Mr Serry Kamal, on behalf of the defendant, set aside its order of 16th March 2007 which struck out the defence and counterclaim dated the 15th day of December 1999 and entered Judgment for the plaintiff.

The brief facts of the case are that the plaintiff had sued for. Le 328,525,753.23 interest thereon from the 27th of august 1999until payment. The defendant entered appearance


and then filed a defence and counterclaim. The matter was also entered for trial and thereafter the matter proceeded to trial . The parties were at the address stage when the erstwhile judge handling the matter passed away in November 2006. the matter was thus reassigned to the current Judge . One would have thought that the matter having taken so long to reach those closing stages it was for the parties to adopt the records . This was -however not to be as the defendant insisted that the matter commenced de novo. This being the defendant's right this court with a view to starting de novo and as agreed by the parties ordered that the plaintiff takes out a summons for directions returnable on the 20th of February 2007. The judge at the hearing of that summons gave full directions for the conduct of the matter . The plaintiff complied with the directions but the defendant failed refused or neglected to do so against the date fixed for hearing, the 9th of March 2007 ". The defendant having failed to comply with the judges directions of 20th February applied for extension of time to comply with the judges order/directions of 20th February 2007 . The defendant's solicitor who made the application did not state any reason for the extension of time as was expected except that he applied for it but this court graciously condescended to the defendants application albeit on very strict terms to wit:

"Unless the defence complies with the order of this court dated 20th February against Wednesday the 14th of March 2007 the defence filed will be struck out and judgment entered for the plaintiff"

By the 13th of March 2007 the defendant's solicitor had not complied with judges order of 20th February2007. On the 16th of February 2007 when this matter came up the defendant was absent and the plaintiff solicitor made the usual application for the defence to be struck out and judgment entered. This court adjourned to the afternoon and noting that it was the proper application to make in the circumstances ordered that the defence and counter claim filed by the defendant be struck out and judgment entered for the plaintiff. It is this striking out of the defence and counter claim and judgment entered that this defendant/ applicant through their, solicitor seek to set aside .


In this application there is no excuse constituting so very special circumstances for the defendant's solicitor's failure to comply. The defendant solicitor says he lost his keys in consequence of which he was traumatized . I however opine that the keys were only lost on the 13th of March 2007 which was just a day before the closing date for his compliance. If indeed the losing of the keys was the reason why he has failed to comply, it in effect means, that he could have complied long before he actually lost those keys as one day was enough for him to comply. When he lost those keys he was not bothered to bring this in writing to the court's attention immediately. On the 16th of March which was the actual date for the hearing, he chose to be absent, if only to explain this to his colleague and ask for a further extension of time in the circumstances . The fact of being in the Appeal Court is unacceptable as Appeal Court sits at 10.00 am and not 9.20 when this court commenced its session. He further states that he was in the middle of co-ordinating his brothers 40th day ceremony when it was he who asked for the date against which the extension of time should be granted.. The plaintiff's solicitor in opposing the application submitted that the defendants' solicitor has not provided cogent reason for the delay. I cannot agree more . Orders for summons for directions were granted by this court on the 20th of February 2007 and he failed to meet the courts deadline of 9th March 2007; but even so. the court was gracious enough to extend time according to the specific time frame requested by the defendant's solicitor, but yet still, the defendant failed to meet the deadline even though, he being present in court, was sufficiently notified of the out come for failure to comply with the unless order .An unless order is a form of peremptory order carrying with it a penal notice. It is ordered normally to enforce compliance with the rules of court. It seems to me it is ordered pursuant to the inherent powers of the court to seek compliance with the rules of procedure and its orders.

In the case ATTOH -QUARSHIE VS OKPOTE 1973 GLR at page 60 the court held 3 areas were the court generally invokes its inherent powers thus:

"Tradition has sanctioned three areas where the court generally invokes its inherent powers . First. where the exercise of the powers is necessary for the maintenance of the court's dignity..andjndcpendcnce, such powers include, the power to punish for


contempt and enforce obedience to its mandate and judgment and orders . Secondly, where the powers arc necessary to ensure the control of its officers (including lawyers), the power to hold its officers to a proper accountability and any default or misfeasance in the execution of its process. Thirdly, powers to prevent wrong or injury being afflicted by its own acts or orders or judgment including the power of vacating judgments entered by mistake and of relieving judgments procured by fraud , and a power to undo what it had no authority to do originally".

Hayfron Benjamin J at PAGE 65 stated as follows

"Inherent Power is not a power derived from any external source, possessed by the court" but are "those which are necessary for the ordinary and efficient exercise of jurisdiction already conferred . They are essentially protective powers necessary for the existence of the court and its due functioning . They spring not from legislation but from the nature and constitution of the court itself . They are inherent in the court by virtue of its duty to do justice between the parties before it"

The unless order specifies that a specific act is to be done; it also specifies the specific time for doing of the act and specifies the unpleasant consequences which may follow or a penal notice in the case of failure to do the act specified .

The fact of the defendants non compliance certainly warranted the court imposing its inherent powers and in circumstances in which the case has taken such a long time without hearing conclusion I think it was proper to do so, for after all,

"Public.policy demands that the business of the courts should be_conducted with expedition "

Dictum of LORD DENNING in the case of FITZPATRICK VS BATGER & CO LIMITED (1967) 2ALL ER 657 AT PAGE 658 .


and also

"The delay, of justice is a denial of no one will we deny or delay right to justice . All through the years men have protested at the law's delay and counted it as a grievous wrong, hard to bear. Shakes spear ranks it among the whips and scorns of time. Dickens tells how it exhaust finances, patience courage and hope . To put right this wrong, we will in this court do all in our power to enforce this expedition; and if need be we will stoke out actions when there has been excessive delay."

Dictum of Lord Denning in the case of ALLEN Vs SIR ALFRED MCALPHINE & SONS (1968) 2 Q B PAGE 232; (1968) 1ALL ER AT P 547 .

It is the law as in EVANS AND BARTLAM that where judgment had been regularly obtained it could be set aside on discretion of the judge where the defendant has a good defence on the merits. There is no doubt that the Judgment entered was a regular judgment and strictissimi juris; the defendant has however failed refused or neglected to produce an affidavit showing a defence as he failed to exhibit his defence. This not withstanding this court cannot say it is unaware of the defence as the papers filed by the plaintiff does show the defence . The court being seised of the defence courtesy of the documents forwarded by the plaintiff, it depended on the judges discretion whether it could be set aside. The authority which this court will go by however is as stated in the The SAUDI EAGLE (1986) 2 LLOYDS REPORT PAGE 221, CA which defines a good defence on merits as one which has "a real prospect of success" and "carry some degree of conviction" and for which the court must be able to form a provisional view of the probable outcome of the action. The statement of Defence dated 15th December 1999 do not in my opinion show a likelihood of success . Furthermore , it would however seem to me that in matters of this nature, a good defence on the merits may not be limited to just the statement of defence which the court was seised of all along, but rather the documents in the form of lists of witnesses , list of documents to be used at the trial and the production of same, witness statements etc that


constitute the defendants' case and which would put the court in a better position vis-a-vis a situation where a mere statement of defence is presented , to consider whether the same constitutes a meritorious defence; these are yet to be place before this court; for what is the purpose of discoveries and inspection and exchange of witnesses statements? With the procedure of production and inspection of documents and witnesses written statements all or substantially all the oral evidence which parties intend to adduce on any issues of fact to be decided at the trial would have been exchanged before the trial so as to enable the parties or their solicitors to make a more realistic appraisal of the strength and weaknesses of their case. In the same vain the court can make realistic appraisal so as to decide whether the defendant has a meritorious defence. Where the defence in making the application to set aside fails, refuses neglects or omits yet still to comply with the order of the court regarding these documents, I do not think, that there is much room to exercising that discretion which the defendants' solicitor would want this court to invoke . That apart, discretion has limits. In the usual case where a regular judgment is prayed to be set aside, it is normally a case where the judgment though regularly obtained was obtained employing the administrative machinery of justice i.e. through the Masters office. In a situation where it is a Judges order that is flouted it is different. I take support for this from the above statement from Lord Aitkin in EVANS VS BARTLAM

"The principle obviously is that unless and until the court has pronounced a judgment on the merits or by consent , it is to have the power to revoke the expression of its coercive power where that has been obtained by failure to follow, any of the rules of procedure"

In this case the expression of the court's coercive powers was obtained by failure to adhere to, not just the rules of court, but rather, to an order of the court which was imposing its inherent powers to mandate compliance through an unless order which has been blatantly flouted . It would be improper to think that this court does not have such powers. I however believe that the defendant appreciates this but would rather the court uses its discretion to set aside what it had pronounced by virtue of order 20 A RULE 18


(1) under its inherent powers . In this connection however let me say the affidavit sworn to falls short of convincing this court to exercising such discretion.

As I speak the defendant are still yet to comply with the courts order of 20™ February 2007. The defendant was unable to as he stated in his affidavit, for reasons he outlined therein, not to comply with the order, but there was and there is nothing stopping him to have exhibited in his said affidavit the documents he would have filed in compliance of the order if time had been extended . A conscientious and vigilant defendant would do this, especially noting the magnitude of the claim against him, if only to prove that he has a good defence and also to confirm that the reasons he has outlined really and truly operated as hindrance but. he has been complacent to wait for months and even as at today's date which is over 2 months from my order dated 16th March to do anything but complain. I would hesitate to set aside my order not even on terms. This case has taken far too long and I note that all the delay has been at the instance of the defendant. Justice delay is justice denied. The defendant could only suffer the consequences of what have been heaped upon themselves. I could only order as follows:

l. The Setting aside of the order made by this court on the 16th of March 2007 striking out the defence and counter claim of the defendants dated the 15th day of May 2006 and entering judgment for the plaintiff is refused.

2. Defence and counter claim filed on the 15th day of May 2006 cannot be restored 3. Costs to be taxed, if not agreed.

Hon Justice Desmond Babntunde Edwards J.