A. Y. OJIKUTU V. FRANCIS E. ODEH TRADING AS ODEH TRADING CO.

Foster-Sutton, P. The plaintiff claimed against the defendant the sum of £84511s. 9d. being the cost of twenty-two tons, two hundredweight, two quarters and eighteen pounds of rubber lumps, at fourpence-halfpenny per pound, delivered by the plaintiff to the defendant during the month of February, 1953, at the latter's request; alternatively, the plaintiff claimed for the return of the rubber lumps in question.

An application, supported by the necessary affidavit, was made to the Court for the suit to be entered for hearing in the “Undefended List”, under the provisions of Order 3, rule 9 of the Supreme Court (Civil Procedure) Rules. The application came before Jibowu, J., on the 24th day of August, 1953, who granted the permission prayed, and fixed the case for hearing on the 12th day of October, 1953.

A notice in writing intimating that he intended to defend the suit, supported -by an affidavit setting out the grounds of defence, sworn to by the defendant, was delivered to the Registrar of the Supreme Court, Lagos Judicial Division at 9.45 a.m. on the 10th day of October, 1953, that is to say, two days before the day fixed for the hearing of the case.

The case came before Abbott, J., on the 12th October, 1953, and that plaintiff's ,solicitor asked for judgment because the notice of intention to defend and affidavit in support had not been delivered to the Registrar “not less than five days before the day fixed for hearing “, as required by Order 3, rule 11, and there was no affidavit before the Court explaining the defendant's neglect to file the” documents within the required period.^{*Page 641}The defendant's solicitor asked for time within which to file an affidavit explaining the neglect, and at the same time informed the Court that the error was due to his own neglect in failing to read the rule.

After stating that” I do not consider that defendant should be given time. He has had plenty already”, the learned trial Judge entered judgment for the plaintiff for the amount claimed and costs, adding, “I would emphasise the necessity for observing strictly the provisions of the rules”, and it is against that decision that the defendant has appealed.

At this juncture it is relevant to observe that it was not suggested that the affidavit filed out of time by the defendant did not disclose a prima facie defence to the claim.

I entirely agree with the learned trial Judge as to the necessity for observing strictly the provisions of the rules, but in this case the neglect to do so was explained to the Court by the solicitor appearing on behalf of the defendant, and I am of the opinion that “in the circumstances here, the trial Judge ought to have given the defendant permission to file an affidavit explaining the neglect.

The principles upon which the Court ought to act in circumstances such as arose in this case are clearly set out in the judgment of Thesiger, L.J., in the case of Collins v. Vestry of Paddington (1880), Vol. 5 Q.B.D., at pages 308 and 381) where he said: “I agree that until a judgment has been arrived at upon the merits, an extension of time may be allowed for rectifying a mistake or oversight.

“Up to that time both parties may be considered as standing upon an equal footing: the questions between them are still open, and it is doubtful which of their opposing contentions is correct: each party has a right to have the dispute determined upon the merits, and Courts should do everything to favour the fair trial of the questions between them. Blunders must take place from time to time, and it is unjust to hold that because a blunder during interlocutory proceedings has been committed, the party blundering is to incur the penalty of not having the dispute between him and his adversary determined upon the merits. All such cases of Blunder may be remedied by payment of costs or the imposition of terms and conditions.”

I would accordingly allow this appeal, set aside the judgment of the Court below, and remit the case to that Court with a direction, since the neglect to comply with the rule has already been explained, that the defendant be let in to defend the suit upon such terms as the Court may think just.

In all the circumstances I would make no order as to costs on this appeal.

de Comarmond, Ag. C.J. I concur. Coussey, J.A. I concur.

Appeal allowed; judgment set aside; case remitted with directions.