G.R. EXPORT V. W. FOLAWIYO

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NIGERIAN SUPREME COURT CASES

[1968] N.S.C.C.

and to

Paul v. Mrs. George

4 F.S.C. 198 as showing the necessity under that rule

to plead facts upon which it is necessary to rely to set up a special defence. In

our view, however, quite apart from rule 13 there is the provision of order 32, rule

11 which reads:-

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"11When a party denies an allegation of fact he must not do so evasively, but

answer the point of substance. And when a matter of fact is alleged with di-

vers circumstances it shall not be sufficient to deny it as alleged along with

those circumstances, but a fair and substantial answer must be given",

and the effect of that, in our judgment, is to require the allegation that a failure

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of a condition precedent exists to be specifically pleaded. In any case, we are of

the view that paragraph 6 of the statement of claim dealt with a number of separ-

ate matters, namely (1) that the balance of money due was £4,527.16.11, and (2)

that the plaintiff had guarantee, and (3) that the defendant had refused to settle it

or any part thereof. and a general denial of the paragraph would not, in our view,

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be sufficient to raise the issue that a condition precedent which was not specifi-

cally mentioned (so was, at the most, implied) had not been complied with. It is

therefore our view that the defendant had neither complied with order 32, rule 11

nor with order 32, rule 13 and that accordingly the issue not having been raised

on the pleadings, nor indeed at the hearing, it is now too late for him to do so.

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The appeal is accordingly dismissed with costs to the respondents assessed

at 31 guineas.

Appeal dismissed.

G.R. EXPORT V. W. FOLAWIYO

GEBR ROCHLING EXPORT

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(By their Attorney M.O. Luther)

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APPELLANTS

V

1.

W. FOLAWIYO

2.

LUBA CONFIRMING AGENCIES LTD.

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RESPONDENTS

SUIT NO. SC 402/66

SUPREME COURT OF NIGERIA

ADEMOLA,

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C.J.N.

LEWIS,

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J.S.C.

MADARIKAN,

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J.S.C.

May 22nd, 1968.

Civil Procedure and Practice

-

Consent judgment against 2nd defendants

instalmental payment ordered - default - writ of attachment issued - defendants

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moved court for stay of execution - Counter affidavit considered and relied

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on - stay granted - discretion of court wrongfully exercised - trial de novo

ordered.

ISSUE:

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1. Whether the judicial exercise of a trial judge's discretion can be disturbed by

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a court of appeal and if so, when.

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