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The Judicial Committee of

Her Majesty’s Privy Council

Monday, the 27th day of November 1961

 

 

Before Their Lordships

 

Lord Alfred Thomas Dennin

......

Privy Councillor

Lord Devlin

......

Privy Councillor

Rt. Hon. L.M.D. DeSilver

......

Privy Councillor

 

 

Appeal No 67 of 1960

 

 

Between

 

Benjamin Leonard MacFoy

.......

  Appellant

 

And

 

United Africa Company Ltd

.......

Respondents

 

 

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

 

E F N Gratiaen

with him

 T O Kellock

......

For the Appellant

 

 

 

Mark Littman. QC

......

For the Respondent

 

 

Solicitors

 

T L Wilson & Co

......

For the Appellant

 

 

 

Linklaters & Paines

......

For the Respondent