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The Judicial Committee of
Her Majesty’s
Privy Council
Monday, the 27th day of November 1961
Before Their
Lordships
Appeal No 67 of 1960
Between
And
Judgement of the
Board
Delivered by
Alfred Thomas,
The Lord Denning
The question in this case is:
what is the effect of delivering a statement of claim in the long vacation?
In Sierra Leone the long vacation runs from 15 July to 15 September.
On 16 August 1958, during the long vacation, the United Africa Co Ltd
issued a writ in the Supreme Court of Sierra Leone against B L
MacFoy.
It was indorsed with a claim for £5,690 15s
9d for goods supplied.
It was duly served, and on 2 September 1958, the defendant entered an
appearance. On 5 September
1958, still during the long vacation, the plaintiffs delivered and filed a
statement of claim in which they alleged that the defendant was indebted to
them in the sum of £5,690 15s
9d for oil products supplied to him, which he
had sold to the public and had not paid for.
The long vacation ended on 15 September 1958.
More than ten days elapsed thereafter and no
defence was delivered by the defendant.
On 29 September 1958, the plaintiffs signed judgment against the
defendant in default of defence.
The judgment ran as follows:
"The defendant not having delivered any defence
herein it is this day adjudged that the plaintiffs recover against the said
defendant £5,690 15s.
9d. and damages to be
assessed."
In November, 1958, the defendant applied to set aside the judgment.
He also applied for a stay of execution.
These applications were heard by Bairamian
CJ on 9 January 1959. The
defendant did not suggest that the judgment was a nullity and void.
He treated it as a regular judgment but sought to set it aside
because he said he had a good defence on the
merits as to all but £250. He
swore an affidavit setting out the reasons why he was too late to file a
defence.
But the chief justice dismissed his applications.
Execution was levied and his goods sold.
On 14 March 1959, the defendant gave notice of appeal to the West African
Court of Appeal. The appeal was
heard on 1 June 1959, by Hurley and Ames, Acting Judges of Appeal, and
Watkin-Williams J.
On the hearing of the appeal the defendant for the first time took
the point about the delivery of the statement of claim in the long vacation.
He said that it was a nullity and that all subsequent proceedings
were void. On June 5, 1959, his
appeal was dismissed. He now
appeals, by special leave, to Her Majesty in Council.
There is no question that all the earlier steps, prior to the statement of
claim, were properly taken during the long vacation.
The writ was duly issued on 16 August 1958.
It was duly served. On 2
September 1958, the defendant duly entered an appearance.
But what then was to happen about pleadings?
The Supreme Court Rule provide by Ord 16,
r 1, that
"Within ten days after appearance, the plaintiff shall deliver to the
defendant a statement of his claim …
and shall forthwith file a copy thereof with the court";
and
by Ord 16, r 2, that
"The defendant shall within ten days of the delivery of the statement of
claim deliver to the plaintiff his defence
… and
forthwith file a copy thereof with the court."
In case of default of pleading the Supreme Court Rules provide by
Ord 23, r 1, that if the plaintiff does not
deliver a statement of claim "within the time allowed for that purpose" the
defendant may apply to dismiss the action for want of prosecution:
and by Ord 23, r 2, that
"If the plaintiff’s claim be only for a debt or
liquidated demand and the defendant does not, within the time allowed for
that purpose deliver a defence, the plaintiff
may, at the expiration of such time, enter final judgment for the amount
claimed with costs."
Such are the times set by the rules for pleadings, but do those times run
during the long vacation? There
is no express provision in the Rules of the Supreme Court of Sierra Leone as
to what can be done in vacation.
Order 44, r 1, simply says that
"The vacations to be observed in the Supreme Court shall be three in every
year, viz., the long vacation, the Christmas vacation, and the Easter
vacation. The long vacation
shall commence on July 15 and terminate on Sept. 15; the Christmas vacation
shall commence on Dec. 23 and terminate on Jan. 4; and the Easter vacation
shall commence on the Wednesday before Easter and terminate on the Saturday
after Easter."
But there is no provision as to what can or cannot be done in vacation.
It was suggested to their Lordships that, as nothing was said, the times for
pleading ran during the vacation:
but their Lordships cannot accept this view.
Their Lordships think that the position is covered by
Ord 52, r 3, which says that:
"Where no other provision is made by these rules, the procedure, practice
and forms in force in the High Court of Justice in England on Jan. 1, 1957,
so far as they can be conveniently applied, shall be in force in the Supreme
Court."
Their Lordships think this rule brings into operation in Sierra Leone the
procedure and practice of the High Court in England as to pleadings during
the long vacation. This is to
be found in Ord 64, r 4 and r 5 of the Rules of
the Supreme Court.
RSC,
Ord 64, r 4, sets out some special causes in
which pleadings may be amended, delivered or filed during the last eleven
days of the long vacation and then says:
"… but
pleadings shall not be amended, delivered, or filed during any other part of
such vacation, unless by direction of the court or a judge."
RSC,
Ord 64, r 5, says that:
"Save as in the last preceding rule mentioned, the time of the long vacation
in any year shall not be reckoned in the computation of the times appointed
or allowed by these rules for amending, delivering, or filing any pleading
unless otherwise directed by the court or a judge."
Applying RSC, Ord
64, r 5, to the present case it is quite plain
that, if the statement of claim was validly delivered and filed on 5
September 1958, the time for defence would not
start to run until the end of the long vacation, namely, 15 September 1958.
The defendant would then have ten days to deliver his
defence, that is, he would have until 25
September 1958. He did not
deliver it within that time and the plaintiffs were therefore entitled to
sign judgment as they did on 29 September 1958.
So the whole question is whether the statement of claim was validly
delivered and filed on 5 September 1958.
There is no doubt that it was a breach of the rules for it to be
delivered in the long vacation:
for it is quite well settled in England, either by the terms of
RSC, Ord 64, r 4, or
by the practice of the court (see the note in the Annual Practice to
Ord 20, r 1) that in such a case as this
pleadings are not to be delivered or filed during any part of the long
vacation except by direction of the court or a judge.
The plaintiffs did not comply with this rule.
They delivered the statement of claim in the long vacation and filed
it without any direction of the court or a judge.
What is the effect of this non-compliance?
The framers of the rules inserted special provisions to deal with
non-compliance. Order 50,
rr
1 to 4 of the Rules of the Supreme Court of Sierra Leone are in identical
terms with Ord 70, rr
1 to 4 of the Rules of the Supreme Court of England.
Rule 1 says that:
"Non-compliance with any of these rules, or with any rule of practice for
the time being in force, shall not render any proceedings void unless the
court …
shall so direct, but such proceedings may be set aside either wholly
or in part as irregular, or amended, or otherwise dealt with in such manner
and upon such terms as the court …
shall think fit."
This rule would appear at first sight to give the court a complete
discretion in the matter. But
it has been held that it only applies to proceedings which are voidable, not
to proceedings which are a nullity:
for those are automatically void and a person affected by them can
apply to have them set aside ex
debito justitiae
in the inherent jurisdiction of the court without going under the rule; see
Anlaby v Praetorius,
and Craig v Kanssen.
The defendant here sought to say therefore that the delivery of the
statement of claim in the long vacation was a nullity and not a mere
irregularity. This is the same
as saying that it was void and not merely voidable.
The distinction between the two has been repeatedly drawn.
If an act is void, then it is in law a nullity.
It is not only bad, but incurably bad.
There is no need for an order of the court to set it aside.
It is automatically null and void without more ado, though it is
sometimes convenient to have the court declare it to be so.
And every proceeding which is founded on it is also bad and incurably
bad. You cannot put something
on nothing and expect it to stay there.
It will collapse. So will this judgment collapse if the statement of
claim was a nullity.
But if an act is only voidable, then it is not automatically
void. It is only an
irregularity which may be waived.
It is not to be avoided unless something is done to avoid it.
There must be an order of the court setting it aside:
and the court has a discretion whether to
set it aside or not. It will do
so if justice demands it but not otherwise.
Meanwhile it remains good and a support for all that has been done
under it. So will this
statement of claim be a support for the judgment, if it was only voidable
and not void.
No court has ever attempted to lay down a decisive test for distinguishing
between the two: but one test
which is often useful is to suppose that the other side waived the flaw in
the proceedings or took some fresh step after knowledge of it.
Could he afterwards, in justice, complain of the flaw?
Suppose for instance in this case that the defendant, well knowing
that the statement of claim had been delivered in the long vacation, had
delivered a defence to it?
Could he afterwards have applied to dismiss the action for want of
prosecution, asserting that no
statement of claim had been delivered?
Clearly not.
That shows that the delivery of a statement of claim in the long
vacation is only voidable. It
is not void. It is only an
irregularity and not a nullity.
It is good until avoided. In
this case, the statement of claim not being avoided, it took effect at the
end of the long vacation and the time for defence
then began to run. Likewise
when the plaintiffs signed judgment in default of
defence, that
too was voidable but not void.
It was not a nullity. It was
therefore a matter for the discretion of the court whether it should be set
aside or not.
Once this stage is reached, it becomes plain that there is no ground for
interfering with the decision of the West African Court of Appeal.
As they pointed out:
"The defendant knew when the statement of claim was delivered to him, and he
knew it was then vacation. He
made no application in the court below to set aside the statement of claim
as having been delivered irregularly; he did not raise the point in any way
until he appeared in this court to argue the appeal, over eight months after
the statement of claim had been delivered.
Instead of applying to have the statement of claim set aside, he
allowed judgment to go against him by default and then moved to have the
judgment set aside. In that
application, he proceeded on the basis that the judgment was a regular and
subsisting one. In support of
the application, he made an affidavit with the object of showing that he had
a defence on the merits, and set out certain
averments intended to establish a basis of fact for that contention.
At the hearing of the application he appeared by counsel, and the
application was argued on the merits of the defence."
In the light of the history, it is well within the discretion of the Court
of Appeal to refuse to set aside the judgment.
Their Lordships will therefore humbly advise Her Majesty that this appeal
should be dismissed. The
appellant must pay the costs of the respondents.
Counsel
Solicitors
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