3PLR – AJALYN SHOES LTD. V. A.L. AKINWANDE & ORS
POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS
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AJALYN SHOES LTD.
V.
A.L. AKINWANDE & ORS
COURT OF APPEAL
(LAGOS DIVISION)
WEDNESDAY, 5TH DECEMBER, 1990.
CA/L/301/88
3PLR/1990/13 (CA)
OTHER CITATIONS
2 NWLR (Pt. 174) 432
BEFORE THEIR LORDSHIPS
ADENEKAN ADEMOLA, J.C.A. (Presided)
UMARU ATU KALGO, J.C.A. (Read the Leading Judgment)
NIKI TOBI, J.C.A.
MAIN ISSUES
ACTION -Commencement of action – ‘And’ in order 2 rule 3, High Court of Lagos State (Civil Procedure) Rules – Whether disjunctive or conjunctive.
ACTION – Commencement of action – Forms of- Order 2 rule 3, High Court of Lagos State (Civil Procedure) Rules – How construed.
ACTION – Commencement of action – Writ of summons – General and special endorsement of – D 1stinction between – Effect of each.
ACTION – Commencement of action by indorsement of writ under Order 3 High Court of Lagos State (Civil Procedure) Rules – Modes of – Exceptions thereto.
ACTION – Commencement of action in the High Court of Lagos State – Forms of – Right of plaintiff to decide form.
ACTION – Commencement of action under Order 2 rule 3 High Court of Lagos State (Civil Procedure) Rules – Procedure for.
COURT – Raising issue suo motu – Need for court to be wary thereof.
COURT – Rules of Court – Recourse to foreign rules – When necessary -When unnecessary.
INTERPRETATION OF STATUTES – ‘And’ in order 2 rule 3, High Court of Lagos State (Civil Procedure) Rules – Whether disjunctive or conjunctive.
JUDGMENT AND ORDER – Summary judgment under Order 10 High Court of Lagos State (Civil Procedure) Rules – Purpose of -Procedure for.
PRACTICE AND PROCEDURE – Commencement of action – ‘And’ in order 2 rule 3, High Court of Lagos State (Civil Procedure) Rules – Whether disjunctive or conjunctive.
PRACTICE AND PROCEDURE – Commencement of action – Forms of – Order 2 rule 3, High Court of Lagos State (Cirri Procedure) Rules – How construed.
PRACTICE AND PROCEDURE – Commencement of action – Writ of summons – General and special indorsement of -Distinction between – Effect of each.
PRACTICE AND PROCEDURE – Commencement of action in the High Court of Lagos State – Forms of – Right of plaintiff to decide form
PRACTICE AND PROCEDURE- Commencement of action under Order 2 rule 3 High Court of Lagos State (Civil Procedure) Rules – Procedure for.
PRACTICE AND PROCEDURE – Rules of Court – Recourse to foreign rules – When necessary – When unnecessary.
WORDS AND PHRASES – ‘And’ in order 2 rule 3, High Court of Lagos State (Civil Procedure) Rules – Whether disjunctive or conjunctive.
REPRESENTATION
Wole Olufon -for the Appellant.
Respondent unrepresented.
KALGO, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal. It concerns the form by which an action shall be initiated in the Lagos High Court under the High Court of Lagos State (Civil Procedure) Rules 1972, (hereinafter referred to as the Lagos State Rules).
By Order 2 Rule 3 of the Lagos State Rules, the writ of summons for any action in the High Court of Lagos State shall be in one of the Forms Nos. I and 2 in Appendix A of the Rules with such variations as circumstances and nature of the case may require. Before going into details of what the Forms 1 or 2 shall contain, suffice it to say that the plaintiff/appellant in this case, filed its writ of summons in the Lagos High Court as in Form 2 on the 15th of February, 1985. On the 20th of February the parties appeared in court and the trial Judge ordered pleadings in the case. On the 17th of April, 1986, the Appellant filed an application seeking leave to amend the writ of summons and statement of claim earlier filed. The application was heard on the 19th of May, 1986 and the learned trial Judge Olorunnimbe, J. gave a considered ruling on the 30th of May, 1986 whereby he made the following orders:
“1. Leave is hereby granted to the plaintiff to amend its Writ of Summons and Statement of Claim.
- The Amended Statement of Claim shall be in appropriate FORM that is FORM NO. I in Appendix A.
- The amended Writ of Summons and Statement of Claim shall be filed and served on or before 6th June, 1986.
- The defendants on being served shall be at liberty to file and deliver an Amended Statement of Defence if need be on or before 13th June, 1986.
- Each party to bear his or its own cost.” (Italics mine)
Thereafter the plaintiff/appellant being dissatisfied with order No. 2 applied to the trial court for leave to appeal against the said ruling and for stay of proceedings, but both prayers were refused and the application was dismissed. He then filed an application for extension of time and for leave to appeal in this court which heard and granted his prayers. He subsequently filed a notice of appeal-in this court on the 1st August, 1986, containing five grounds of appeal which read:
“1. The learned trial Judge misdirected himself when he ruled that Order 14 Rules of Supreme Court of England applied to this matter when the High Court of Lagos State Civil Procedure Rules clearly provide in Order 2 Rule 3 and Order 3 Rule 4 that this action can be commenced by use of Writ of Summons Form No.2.
- The Learned trial Judge misdirected himself when he held that an action commenced using Form No.2 in accordance with Order 3 Rule 4 must necessarily be one for which summary judgment can be obtained under Order 10 High Court of Lagos State Civil Procedure Rules.
- The Learned trial Judge further misdirected himself when he referred to Order 14 Rules of Supreme Court of England which is similar to Order 10 High Court of Lagos State Civil Procedure Rules when the plaintiff had not sought summary judgment under Order 10 High Court of Lagos State Civil Procedure Rules.
- The learned trial Judge erred in law when he ruled that Order 14 Rules of Supreme Court is applicable to this matter when Order 10 High Court of Lagos State Civil Procedure Rules is sufficiently exhaustive on the matter and in view of the provisions of Section 12 of the High Court Law of Lagos State. Laibru Limited v. Building Civil Engineering Contractor (1962) 1 All NLR 387 Sheriff Baffa v. Sherub Bappale (1969) NMLR 1.
- Granting but by no means conceding that Order 14 Rules of Supreme Court England is applicable to this case which presupposes that the same was commenced by a specially indorsed writ, the plaintiff would still have been right to commence this action for a declaration using Form No.2 -Wallersteiner v. Moir (1974) 1 WLR 991 or (1974) 3 All E.R.217.”
The plaintiff/appellant filed its brief of argument on the 5th of July, 1990, in this court. The brief was served on the defendants/respondents but they failed to file any brief.
On the 8th of October when this appeal came up for hearing, the plaintiff/appellant’s counsel with the leave of the court moved his first application for leave to argue additional grounds of appeal which were already covered by his brief of argument. The Court granted his application as prayed. The plaintiff/appellant’s counsel then moved his second application for accelerated hearing of the appeal in view of the nonchalant attitude of the defendants/respondents; they failed to file any brief of argument and there was no application by them for extension of time to do so. This application was also granted as prayed and the hearing of the appeal proceeded accordingly.
Before this court, the learned counsel for the plaintiff/appellants adopted and relied upon his brief dated 30th June, 1989. He then drew the Court’s attention to the relevant ruling of the trial Judge on page 85 of the record of appeal, and asked the court to allow the appeal.
In his brief of arguments, the learned counsel for the plaintiff/appellant set the following issues for determination in the appeal:
“(1) Whether the Plaintiffs action was properly commenced by using Form 2 in Appendix A of the Lagos State Rules.
(2) Whether commencement of actions by the use of Form 2 in Appendix A of the Lagos State Rules is confined only to actions for which summary judgment can be obtained under Order 10 of the Lagos State Rules.
(3) Whether the learned trial Judge was right in considering and applying Order 14, Rules of Supreme Court of England when the plaintiff had not sought summary judgment under Order 10 of the Lagos State Rules.
Since there is no brief for the respondents, I think that the issue raised .)y the appellants in this appeal are the correct ones but that they are, to me, not complete. In my view, there is a 4th issue and that is:
“Whether the learned trial Judge was right to raise the point of the form of the writ of summons suo motu and rule on it as he did. I am accordingly adding this issue for determination in this appeal.
Order 2 rule 1 of the Lagos State Rules, provides:
“1. Every action in the High court shall be commenced (unless otherwise expressly provided) by a writ of summons which shall be endorsed with a Statement of the nature of the claim made, or of the relief or remedy required in the action.”
Therefore as a general rule, every action in the High Court of Lagos State must be commenced by a writ of summons indorsed with some particulars of claim made or relief or remedy required. This rule does not specify any particular form by which the writ of summons shall take. This is however provided in rule 3 of the same Order which says:
“The writ of summons for the commencement of an action shall, except in cases in which any different form is hereinafter provided, be in one of the Forms Nos. I and 2 in Appendix A, with such variations as circumstances may require.”
This means that all actions in the High Court of Lagos, except where a special form is required, must be in Forms 1 and 2 of Appendix A to the Lagos State Rules. By ordinary rules of interpretation of could expect the word “and” after the words Form Nos. 1, to be conjunctive. But by my interpretation it must be disjunctive because the two forms of action cannot possibly be used for one action at the same time.
Also by Order 3 Rule 1 of the Lagos State Rules, “The indorsement of claim shall be made on every summons before it is issued.” So that in both Forms Nos. 1 and 2, the writ of summons must according to this rule, be indorsed with “the ground of complaint and the relief or remedy to which the plaintiff considers himself entitled. “The Lagos State Rules provides for various types of indorsements, under Order 3, e.g. to show whether plaintiff sues in a representative capacity or not; whether suing as creditor executor, administrator, next of kin etc. in probate action; in liquidated claims for debt to state amount and costs and whether defendant can pay; in actions for account or libel to state particulars, money-lenders action various details must be endorsed; plaintiff suing in person or by a legal practitioner to indorse own address or that of legal practitioner as case may be; notice of writ of summons to be served outside the jurisdiction to be so indorsed on both writ and notice, and so on. All these are cases where a writ of summons require indorsement under the rules. But all these indorsements are what I can call `general or ordinary’ indorsements and the writs so indorsed are general forms of writs. There are cases under Order 3, Rule 4 of the Lagos State Rules, where “Special indorsement” is required. In that case, the writ of summons may be referred to as “specially indorsed writ”.
Let us now examine Forms 1 and 2 in Appendix ‘A’ of the Lagos State Rules. Form No. I is headed as follows:
“General Form of Writ of Summons (0.2 rr 3 and 6)” In the indorsement part of the writ, it only provides:
“The plaintiff’s claim is for etc.”
This part is where the plaintiff sets out the ground of his complaint and the relief or remedy he considers himself entitled against the defendant. Whereas in Form No. 2, the heading reads:
“Specially Indorsed Writ, Order 3 Rules 4, 5 (0.2; r.3” In the indorsement column, the following words appear : ”Statement of Claim:
The plaintiffs claim is ……
Particulars:-” It is pertinent to observe that the general Form No. 1, did not have any mention of a statement of claim whereas Form No.2 has. That is why it is referred to as specially indorsed writ of summons, which makes it different from the general form of writ of summons.
Since Form No.2 is a special writ, let us now see from the Lagos State Ruks, what actions can be commenced with that Form. Order 3 rule 4 of the said Rules, provides:
“4 (1) In any action which in England may be assigned to the Chancery Division or the Queen’s Bench Division, other than an action which includes:
(a) a claim by the plaintiff for libel, slander, malicious prosecution, false imprisonment, seduction, or breach of promise of marriage; or
(b) a claim by the plaintiff based on an allegation of fraud.
the writ of summon may, at the option of the plaintiff, be specially indorsed with or accompanied by a statement of his claim”.
The learned counsel for the plaintiff/appellant argued in his brief that although the Lagos State rules provide that all writs of summons must be in Forms 1 and 2, and that they must be indorsed with the ground of complaint and relief sought, a plaintiff has the option to specially endorse his writ even where the cause of action does not come within those causes mentioned in Order 3 rule 4 of the said Rules. He further submits in his brief that even in case of claim for debt or liquidated amount, only the indorsement for costs need be in Form 2 by virtue of Order 3 rule 5(2) of the said Rules. Therefore, Counsel argued, he has the right to file his writ of summons as he did – specially indorsed with and accompanied by a statement of claim under Form 2.
1 shall now examine the plaintiff/appellant’s action as a result of the amendment granted by the learned trial Judge. His Statement of Claim is for
(i) a declaration that he is the owner of land in dispute by virtue of purchase receipt dated 18th July, 1982;
(ii) #10,000.00 damages for trespass;
(iii) perpetual injunction restraining the defendants etc. from further acts of trespass; and
(iv) N12,500.00 as special damages.
The learned trial Judge after setting out the plaintiff/appellant’s claim in his ruling on page 87 of the record of appeal had this to say:
“It is my view that these claims cannot be commenced by specially indorsed Writ in Form No.2.”
He then proceeded to say that he is re-enforced in holding that view by making reference to English rules of summary procedure under Order 14 of English Rules of Supreme Court, which is similar in part to the provisions of Order 3 rule 4 of Lagos State Rules. He quoted from a White Book without quoting the year of Edition, on p.159 where it said that the Order does not apply to cases in which there is a right to trial by jury.
I think this is the stage where the learned trial Judge started to deviate from the right path. There is no need in my view for him to make any reference to the English Rules in this respect because the Lagos State Rules, in Orders 2 and 3 have made more than adequate provisions for commencement of all types of action. And by referring to Order 14 of the English Rules, the learned trial Judge has moved away from the types or forms of action to actions in which summary procedure can be invoked. This is not the issue at that stage of the action before him. I therefore agree with the learned counsel for the plaintiff/appellant that the learned trial Judge was in error when he made the reference to Order 14 of English Rules.
The Supreme Court has repeatedly said in many decided cases that all courts in this country should refrain from making any reference to any law or procedure of any foreign country where our own provisions are full and adequate except where there is a lacuna in our laws or rules or where issues of interpretation are involved. Coming back to the Lagos State Rules, the learned trial Judge in his ruling on page 88 of the record said:
“It is my view that the two FORMS NOS. 1 and 2 are designed to commence different actions to achieve different results.
But in a clear way- an action commenced by FORM NO. 2 either endorsed with a Statement of Claim or accompanied by one is not expected to go trial. Again the defendant is not entitled to defend as of right. It is a means of disposing of cases which are virtually uncontested. He can only defend with leave of court.
Whereas in the case of FORM NO. 1 the defendant is entitled to defend. Moreover the procedure for obtaining judgment in the two cases are different.”
With due respect to the learned trial Judge, he is obviously wrong in his view. It is not, in my opinion correct to say on proper interpretation of the Lagos State Rules, that Forms Nos. 1 and 2 are designed to achieve different results. I quite agree that they may be used to commence different types of actions but certainly the end results are to get judgment either for or against the plaintiff who uses the forms. It is also not quite correct to say that an action in which Form 2 is used is not expected to go to trial or that the defendant cannot defend as of right. In my view, where Form 2 is used and all matters preparatory to trial are completed and the plaintiff did not apply for summary judgment under Order 10 of the Lagos State Rules, the action goes to trial in the normal way. But where a plaintiff applies for summary judgment under the said Order 10, then if the requirements of that order are satisfied, and the court finds that the defendant has no good defence to the action, judgment is entered for the plaintiff and the action does not go to trial. Therefore it is correct to say as the learned trial Judge has said, that the defendant is not entitled to defend as of right in that situation, but his right to defend is curtailed due to the Order 10 procedure. Therefore the right to defend an action and the procedure of obtaining judgment may differ in actions in Form No. I from Form No. 2 since in the latter an application is made for summary judgment by a plaintiff under Order 10 of the Lagos State Rules.
I think that the learned trial Judge was very conscious of the procedure for summary judgment under Order 10 of the Lagos State Rules when he made the ruling complained of. This is indicated by his constant reference to procedure for obtaining judgment in the ruling. He did not consider that in the light of Order 2 rule 3, and Order 3, rule 4, the plaintiff/appellant can choose to come under Form No. 1 or No.2. The plaintiff/appellant having chosen Form No.2 can elect to go to full trial, or to apply for summary judgment under Order 10 of the said Rules. Therefore I do not agree with the learned trial Judge that what the plaintiff/appellant did was “against the spirit and letter” of Lagos State Rules or that it would open “flood-gate for the indiscriminate use” of the Forms.
It is also pertinent to observe here that the point whether the plaintiff/ appellant used the correct Form in initiating his action or not was not raised or objected to by the defendant/respondent but by the learned trial Judge suo motu. The learned trial Judge admitted this in his ruling when he said on page 89 of the record of appeal that –
“I had taken the point suo motu to alert Counsel that Rules of Court must be obeyed.”
He then added a little later on the same page that he was making the order complained of “in order to save time and expense and in the interest of justice”. In the first place, the plaintiff/appellant was in my opinion not disobeying any Rules of Court, as I said earlier in this judgment, by filing his action using Form No.2, nor can it be said that he caused or is likely to cause any delay or expense to any one by doing what he did. Also the objection taken by the learned trial Judge did not and could not affect his jurisdiction to try the matter whether the action was in Form No. 1 or No. 2. The point should therefore, in my opinion, be left to the parties or their counsel to consider in the course of the trial. On the whole, my view is that the point which the learned trial Judge took at this stage, is not one which he should have taken suo motu.
There is no doubt that the purpose of using Form No.2 is ultimately to be able to use the summary procedure for judgment under Order 10 of the Lagos State Rules. I also entirely agree with the learned trial Judge that the purpose of Order 10 Rules 1(a) and (b) of the Lagos State Rules is to enable a plaintiff to obtain summary judgment without proceeding to trial, and that they are for disposing, with dispatch, cases which are virtually uncontested. See the case of Sodipo v. Lemminkainen OY (No.2) (1986) 1 NWLR (Pt. 15) 220 at 230.
In the Sodipo case supra, the defendants to a specially indorsed writ of summons after entering appearance, filed a motion on notice alleging that the writ filed by the Plaintiffs was not, in law, a specially indorsed writ. The trial Judge in that case raised, suo motu, the question of illegality of the plaintiffs claim. Both counsel addressed him on the issue and in his ruling, he maintained that the claim was tainted with illegality and he ruled against the plaintiff. The plaintiff appealed to the Court of Appeal which dismissed the appeal. He then appealed further to the Supreme Court. On the question of taking an issue suo motu by a court not raised by the parties, the Supreme Court held in the Sodipo case (supra) per Eso, J.S.C. at page 234 that:
“A judge is 1sts to determine disputes and to examine with due care and microscopic sense all matters before him in his pursuit of justice. He is there not to trap any party or to set in motion what the parties have not brought before him. He is not the Grand Inquisitor envisaged by Destoevesky in his Brothers Karamazov. He is a Judge governed by rules.”
On the same point and in the case, at page 238, Karibi-Whyte, J.S.C. had this to say:-
“In our adversary system of the admin 1stration of justice, the role of the Judge is to act as an unbiased umpire, and to determine the issue before him in accordance with the facts placed before him. In this effort He may draw legitimate inferences arising from such facts. In the discharge of those functions the Judge is circumscribed within the facts before him and is not expected without supporting facts to go a step further than is required for determination of the issues before him.”
From these learned pronouncements, which are very clear, the golden rule seems to be that the Judge in determining an issue must be confined to the facts presented before him and that though he can draw inferences from those facts, he should not go on a lone voyage into the unknown. He must also confine himself to the applicable law and the rule on the issue before him as far as possible. The totality of what the learned Justices are saying is that a Judge should be wary of taking issues suo motu and not raised by parties except in certain cases. In the Sodipo case (supra) the trial Judge took the point of illegality affecting the claim of the plaintiff, and although this point was not raised, it was held that the trial Judge was perfectly justified to raise the point in the circumstances of that case.
Also in the case of Phillips v. Copping (1938) 1 K. B. 15 C. A. it was held that:
“It is the duty of the Court when asked to give a judgment which is contrary to a statute to take the point, although the litigants may not take it.”
In the instant appeal, there was no issue of illegality raised against the writ of summons or the statement of claim indorsed thereon. And by virtue of what I said earlier in this judgment, the use of Form No.2 in filing the action by the plaintiffs/appellants is not in my opinion, contrary to the Lagos State Rules or any law at all.
It is to be observed that in the instant appeal, the plaintiffs/appellants made no attempt at any stage of the case before the trial Court to comply with the procedure under Order 10 of the Lagos State Rules. In fact the case proceeded right from the beginning as an ordinary case and at one stage was struck out and relisted. The 1st, 2nd, 3rd and 5th defendants filed their Statement of Defence in the normal way. There was nothing to suggest that the plaintiffs/appellants were taking the defendants/respondents by surprise or preparing to proceed under Order 10 supra. The defence has already been filed and the plaintiffs/appellants have not filed any affidavit verifying the cause of action etc. as required by Order 10. See Nishizawa Ltd. v. Jethwani (1984) 12 S.C.234. And in the case of U.T.C. (Nig.) Ltd. v. Pamotei (1989) 2 N.W.L.R. (Pt.103) 244, Karibi-Whyte, J.S.C. at 227 said that even in a case where the writ is specially endorsed, if the defendant is able to show that:
“The claim is not one which could be specially endorsed under Order 3 Rule 4 (See Order 10 Rule (1)(b), the court may suo motu amend the indorsement by striking out the claim as if no claim, or may deal with the claim as if no other claim had been included in the indorsement, and allow the action to proceed …..”
So that in the instant appeal what the learned trial Judge could have done after hearing the parties on the form to be used in filing the action, was to strike out the special indorsement and allow the action to proceed since pleadings have been filed by both parties. I think the learned trial Judge is wrong to have ordered the plaintiffs/appellants suo motu to come by Form No. I when it was not proved that his claim was not one which could not be specially endorsed under Order 3, r.4 of the Lagos State Rules. I also do not agree with the learned trial Judge that Order 14 of the English Rules of Supreme Court is applicable here.
In sum and for the reasons stated earlier in this judgment, the grounds of appeal succeed and the issues for determination found to be in favour of the appellant. This appeal therefore succeeds and it is allowed. The order No.2 made by the learned trial Judge Olorunnimbe, J. on the 30th May, 1986, ordering the plaintiffs/appellants to file their Amended Statement of Claim in Form No. 1 of Appendix A, is hereby set aside. I make no order as to costs against the respondents as the subject-matter of appeal was raised by the learned trial Judge suo motu.
ADEMOLA, J.C.A.: 1 have read the judgment of my learned brother, Kalgo, J.C.A., in this appeal.
I agree with it. I have nothing to add.
TOBI, J.C.A.: 1 have had the privilege of reading in draft the lead judgment just read by my learned brother, Kalgo, J.C.A. and I agree with him. I only want to place emphasis on one aspect. The main issue in this interlocutory appeal is whether the action of the plaintiff/appellant ought to have been initiated under Form 1 in Appendix A of the High Court of Lagos, State Civil Procedure Rules 1972 instead of Form 2 under which the plaintiff/appellant commenced the action.
The aspect that is most worrying is the regular and easy resort to English Law and English rules of procedure by both the Bench and Bar of Republican Nigeria. If after three decades of our sovereignty, the practitioners of the Nigerian Legal System will continue to rely on English Law and English procedure most of the time, despite adequate local provisions, then our political and legal independence do not mean much. Although we became a British colony in 1861, with its attendant colonising spree of imposing the English Legal System on us, (I hate to use the word ‘reception’) we have since acquired independence, operating essentially a Nigerian Legal System to the people of Nigeria.
The Supreme Court has warned time without number that our courts should only resort to English Law when there are no adequate local provisions in Nigerian Law. In other words, where there are adequate local provisions on a matter, resort should not be made to English Law.
In Okokor v. The State (1967) NMLR 189, Lewis, J.S.C. an English, while dealing with the two entirely different concepts of dying declaration under English Law and Nigerian Law, warned trial courts as follows:
“We must repeat that trial courts should be little more cautious in the application of principles of English Law in the face of specific provisions in our local statutes.”
See further R v. Coker (1927) 8 NLR 7; Ogbuagu v. The Police (1953) 20 NLR 139.
In the instant case, the learned trial Judge decided to fall back on Order 14 of the English Rules of the Supreme Court – The White Book. He saw in the English Order 14 a parallel or analogous rule to our Order 3 of the Lagos State Rules and came to his own conclusion, despite the position taken by the learned authors that the English Order 14 does not apply to cases in which there is a right to trial by jury. To the best of my knowledge, Lagos State does not operate the jury system.
I have carefully read Orders 2 and 3 of the Lagos State Rules of Court vis-à-vis Forms 1 and 2 in Appendix A and I have come to the conclusion that the Orders and the said forms are exhaustive, complete and full on the issue of form, commencement of actions as well as indorsement of claim and of address of the parties. And so, the learned trial Judge, with the greatest respect had no business whatsoever in flirting with the English Order 14. I therefore entirely agree with my learned brother in the lead judgment when he said that “this is the stage where the learned trial Judge started to deviate from the right path.” And so, he got the matter wrong.
I am in full agreement with the interpretation my learned brother has given to Order 2 and 3 and Forms 1 and 2 in Appendix A of the High Court of Lagos State Civil Procedure Rules, 1972. I adopt them as mine. I would also allow the appeal. I also abide by the orders made in the lead judgment.
Appeal allowed.
