In Macfoy v United Africa Company limited (1961) 3 All ER 1169 (PC) at page 5 of the judgment Denning LJ held that:
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”.
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.
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 judgmentwas 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.
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.
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