JOHN GRISBY V. M. S. JUBWE & 3 ORS

Coussey, J.A. In this case the plaintiffs claim against the defendant 1,227 19s. 10d. as special damage and £500 general damages occasioned by the unlawful interference by the defendant with a contract of labour between the plaintiffs and Elder Dempster Lines Ltd.

Before the return date of the writ of summons, the plaintiffs moved ex parte an order for leave to sue in a representative capacity. The defendant, however, attended the Court by counsel and opposed the application, but the order was made. On the return date of the writ the defendant attended by counsel and pleadings were ordered.

The plaintiffs' statement of claim was filed on the 24th October, 1953. On the

3rd November the defendant filed what is headed as a statement of defence whereby he claimed to be exempted from the jurisdiction of the Court on the ground of diplomatic immunity. He did not answer the allegations of fact in the plaintiffs' statement of claim.

On the 16th November, 1953, when the action came on for hearing the Court ; held that the defendant had submitted to the jurisdiction of the Court by not appearing under protest. The Court further held that the defence filed was valueless; that the averments in the statement of claim must be taken to be admitted and judgment was entered for the plaintiffs for the amount of special damage claimed; namely £1,227 19s. 10d. and costs.

The defendant appeals from this judgment.

As to the first ground of appeal, that the Court erred in holding that there was a submission to the jurisdiction of the Court, it is unnecessary to decide the point t whether as Liberian Consul the defendant was exempt from the jurisdiction. As he had clearly attended the Court, both on a motion and on the return date, he had thereby submitted to the jurisdiction by opposing the plaintiffs' motion and by accepting an order for pleadings.

As to the second and third grounds of appeal, namely that the Court erred in entering judgment for the plaintiffs without hearing evidence in a claim not on the Undefended List and, further, in not allowing the defendant to file a defence to the action in answer to the facts alleged in the statement of claim, the appeal must, in my opinion, succeed.

It should be observed in the first place that the claim is for unliquidated or undetermined damages. Accepting that the defendant had failed to file a defence the general rule is that no denial or defence is necessary as to damages claimed or their amount. They are deemed to be put in issue in all cases unless expressly admitted.

Under English practice a plaintiff is by statute allowed, in certain cases, to sign judgment in default of pleadings but in Nigeria where the Court proceeds in default of the defendant's attendance or of defence filed the plaintiff must produce prima facie proof of his case to the satisfaction of the Court before he is ; entitled to judgment, except where the action is brought on the Undefended List.

By rule 3 of Order 40 of the Rules of the Supreme Court., if the ptaintiff1!.ppears and the defendant does not appear, the Court may proceed to hear the cause and give judgment on the evidence adduced by the plaintiff.

Order 41, rules 1, 2 and 3 of the Supreme Court Rules provide:- The order of proceedings where statements of claim and of defence have been filed is, “The party on whom the burden of proof is thrown by the material issues as the Court may determine shall begin. “He shall produce his evidence and examine his witnesses in chief.”

In other words the plaintiff must prove his case. An express admission may relieve him of proof in whole or in part but what is not admitted must be proved. There is no admission as to unliquidated damages.

The Court erred therefore in entering judgment for the plaintiffs without proof and that judgment and consequential orders must be set aside, and it is so ordered.

The appeal is accordingly allowed and the case is remitted to the Court below. Having regard to the circumstances in which the defendant' failed to file a defendenc being of the impression that he was claiming exemption from the jurisdiction this was not an ordinary cases of defaulty in pleading. It is therefore ordered that the defendant shall file a defence within fourteen days of the date of this judgment and that the action shall then be set down for trial speedily.

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The defendant-appellant will have the costs of this appeal but the costs of all prior proceedings in the Court below to abide the result of the trial.

de Comarmond, Ag. C.J. I concur. Foster-Sutton, P. I concur.

Appeal allowed; Judgment set aside; directions given for trial.