MacFoy v United Africa Company Ltd
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1961 |
| Date | 1961 |
| Year | 1961 |
| Court | Privy Council |
Practice - Pleadings - Long vacation - Statement of claim delivered during long vacation without direction of court - Whether void or voidable - Effect on subsequent proceedings -
The plaintiffs issued a writ against the defendant in the Supreme Court of Sierra Leone during the long vacation, which ran from July 15 to September 15, and on September 5, 1958, still during the long vacation, delivered and filed a statement of claim. The defendant, who had entered an appearance, delivered no defence, and on September 29 judgment was signed against him by default. His application to set aside that judgment on the ground that he had a good defence on the merits was dismissed by the Supreme Court, and he appealed to the West African Court of Appeal when, for the first time, he contended that the statement of claim, having been delivered in the long vacation, was a nullity and that all subsequent proceedings were void. On his appeal against the refusal of that court to set aside the default judgment:—
Held, (1) that, there being no express provision in the Rules of the Supreme Court of Sierra Leone that the times set by the Rules for pleadings were to run during the long vacation, Ord. 52, r. 3, of those Rules brought into operation in Sierra Leone the practice and procedure of the High Court in England as to pleadings during the long vacation.
(2) That either by the terms of the English R.S.C., Ord. 64, r. 4, or by the practice of the court (see note in the Annual Practice to Ord. 20, r. 1) it was a breach of the Rules for this statement of claim to have been delivered and filed during any part of the long vacation except by direction of the court or a judge, and the plaintiffs had filed it without any such direction.
(3) That rule 1 of Order 50 of the R.S.C. of Sierra Leone (identical with rule 1 of Order 70 of the English R.S.C.), which provided that
“non-compliance with any of the rules … shall not render any proceedings void unless the court shall so direct, but such proceedings may be set aside … as irregular …,” only applied to proceedings which were voidable, not to proceedings which were a nullity: Anlaby v. Praetorius(
1888 )20 Q.B.D. 764 ;4 T.L.R. 439 , C.A.; Craig v. Kanssen[1943 ]K.B. 256 ; [1943 ]1 All E.R. 108 , C.A.
(4) That the delivery of the statement of claim in the long vacation was only voidable and not void — it was only an irregularity and not a nullity — and it was therefore a matter for the discretion of the court whether it should be set aside or not, and not having been avoided there was no ground on the facts of this case for interfering with the discretion of the court below refusing to set aside the default judgment.
APPEAL (No. 67 of 1960), by special leave, from a judgment of the West African Court of Appeal (June 5, 1959) affirming a judgment of the Supreme Court of Sierra Leone (January 9, 1959) whereby the appellant's application to set aside a default judgment dated September 29, 1958, in an action between the respondents and the appellant, or to stay execution thereof, was refused.
The following facts are taken from the judgment of the Judicial Committee: In Sierra Leone the long vacation runs from July 15 to September 15. On August 16, 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 September 2, 1958, the defendant entered an appearance. On September 5, 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 September 15, 1958. More than 10 days elapsed thereafter and no defence was delivered by the...
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Omex Shipping Co Ltd v World Aero Supplies Pte Ltd and Another
...the course of his submission, counsel for the plaintiff referred me to the Privy Council decision in MacFoy v United Africa Co Ltd [1962] AC 152 which he contended, supported his view of the law. In that case, the Privy Council had refused to set aside a judgment in default of defence. The ......
- Chapman v Chapman
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Action
...is, in strict sense, nothing to waive. One cannot put something upon nothing and expect it to stay there. Refer to Macfoy v. U.A.C. (1962) A.C. 152; Odu’a Investment Co. Ltd. v. Talabi (supra) at p. 780.” - Per Fabiyi, J.C.A. in Anyaegbunam v. A.-G. Suit No. CA/E/202/95; (2000) 20 W.R.N. 78......
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Preliminary Sections
...Ltd. (1964) A.C. 234 .......44 Macdonald v. Empire Garage T.L.R. October 8th 1975. ............................. 146 Macfoy v. U.A.C. (1962) A.C. 152. 27 Madzibamuto v. Lardner Burke (1969) 1 A.C. 645. .......27 Magor and St. Millons Rural District Council v. Newport Corporation (1952) A.C.......
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Courts 2
...F.J. (as he then was) in Madukolu & Ors. v. Nkemdilim (1962) 2 S.C.N.L.R. 341; (1962) 1 All N.L.R. 587 at 590. see also Macfoy v. U.A.C. (1962) A.C. 152 at 160 P.C.” - Per Ogundare, 161 Jurisdiction Paras. 1466-1469 J.C.A. in Odu’a Invest. Co. Ltd. v. Talabi Suit No. S.C. 31/1991; (1997) 10......
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Evidence 1
...appellant cannot validate that judg- Paras. 428-431 Vol. 10 Pt. I: EVIDENCE 1 216 ment. For as was stated in the case of Macfoy v. UA.C. (1962) A.C. 152 at 152; (1969) All E.R. 1169, nothing can be put on nothing. See also lyamu v. Aigbiremwan (1992) 2 N.W.L.R (Pt. 222) 234 at 242.” - Per E......