CHRISTOPHER GEORGE GREENE

APPEARANCE (Order 12)

Entry of appearance gives a defendant locus standi before the court; without having entered
appearance any application made by the defendant (including raising an objection to the jurisdiction
of the court) will not be countenanced, as illustrated in S.L.O.F. v PYNE-BAILEY.

After being served with an originating process, the defendant should enter appearance within 14
days after service of the writ, or within such time as the court prescribes (Order 12, Rule 11). If he
does not do so, he will risk proceedings being taken against him in default under Order 13.

Practice
The defendant prepares a memorandum of appearance and a duplicate of the same. The
memorandum should be in Form I of the schedule (Order 12, Rule 8). On the memorandum the
business address of the defendant’s solicitor should be stated, as well as his address for service
(Order 12, Rule 5). If the defendant sues in person, his personal address should be stated, as well as
his address for service (Order 12, Rule 6). If the memorandum does not contain the relevant
addresses, then it will not be received; if it contains an address which turns out to be a fictitious
addresses, then the plaintiff may make an application to the court for the appearance to be set aside
(Order 12, Rule 7).

The defendant enters appearance by delivering the memorandum and duplicate to the Master
(Order 12, Rule 3). He does this at the Master’s Office (Order 12, Rule 1) or District Registry (Order
12, Rule 2), as the case may be. The Master should then enter the appearance in the Cause Book
(Order 12, Rule 9). Then he seals the duplicate memorandum with the official seal and returns it to
the defendant. (Order 12, Rule 3).

On that same day, the defendant should give notice to the plaintiff’s solicitor or the plaintiff himself
(if he sues in person). The notice should be accompanied by the duplicate memorandum. (Order 12,
Rule 4).

Late Appearance
The defendant may enter appearance at any time (even after judgment). But if he files such a late
appearance, the time limit within which he was to serve his defence or do any other thing, is not
extended. (Order 12, Rule 12).
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DEFAULT OF APPEARANCE (Order 13)

A defendant who has been served with an originating process must enter appearance under Order
12. He must do within 14 days or within such time as the court may direct (Order 12, Rule 11). If he
does not do so, the plaintiff may proceed to enter judgment in default of appearance.

The effect of default of appearance under Order 13 is that, as held in CRIBB v FREYBERGER, the
defendant is deemed to have admitted all the allegations contained in the statement of claim, or on
the writ.

Judgment in default of entering appearance under Order 13 must be distinguished from judgment
in default of appearing at trial under Order 41, Rule 1. Both are weak judgments, but judgment
under Order 13 is entered administratively, whereas judgment under Order 41 is given by a judge.
In S.L.O.F. v PYNE-BAILEY, the defendants failed to enter appearance and the plaintiff was entitled
to enter judgment in default. But in BASMA v DIZENGOFF (1963), where the defendant entered
appearance but fail to appear at the hearing, judgment was given for the plaintiff by default.

CONDITIONS PRECEDENT
In order for the plaintiff to be entitled to enter judgment in default, (1) the writ must have been duly
served, (2) the time limited for entering appearance must have expired with no such appearance
having been entered, and (3) the plaintiff must have filed an affidavit of service and search.

If any of these requirements are not complied with, the judgment is irregular, and may be set aside
under Order 13, Rule 9.

PRINCIPLES
Judgments in default have been referred to by Roberts JSC as an “administrative” judgment or a
“paper” judgment because it is weak compared to judgment given after the court has heard a case
on its merits. As such, it is open to the Court to set aside the judgment entered in default pursuant
to Order 13, Rule 9, upon terms, such as costs.

1. Regular judgment
The fundamental principle is that it lies at the discretion of the court to set aside or uphold the
default judgment. Lord Atkin said in EVANS v BARTLAM that the principle is that, unless and
until the court has pronounced a judgment upon the merits or by consent, it is to have the power to
revoke the expression of its coercive power where that had been obtained only by a failure to follow
any of the rules of procedure. In JIM DIAMANTOPOULOS v BERTHAN MACAULEY, Bankole
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Jones Ag. CJ, held that that the court has an inherent and untrammeled discretion to set aside
judgment regularly obtained if circumstances require it.

It is not a condition precedent that the defendant must provide a reasonable explanation for his
delay in appearing. Lord Atkin in EVANS v BARTLAM said that no such rule exists. However,
such an explanation may be considered by the court in the exercise of its discretion to set aside the
judgment, and in YEMEN CO. LTD. v WILKINS an unexplained delay was fatal to the application.

However, the principal factor in setting aside judgment obtained in default is whether the defendant
has a meritorious defence, as held by Lord Wright in THE SAUDI EAGLE. As such, Lord Denning,
in WARD v JAMES said that although the court has an unconditional discretion whether or not to
set aside a judgment in default regularly obtained, yet there is an almost inflexible rule that there
must be an affidavit showing a defence upon the merits. However, The test of a good defence in
THE SAUDI EAGLE was said to be that the defence raised should have a real prospect of success.
However, in DAY v. RAC MOTORING SERVICES, the court held that this standard or test in the
Saudi Eagle was too rigorous and substituted it with a test that the defence must disclose an
arguable case carrying some degree of conviction. In EVANS v BARTLAM, it was held to be a good
defence where the defendant had a defence under the Gaming Act. And in VANN v. AWFORD, it
was held to be a good defence where the defence disclosed a reasonable prospect of reducing the
quantum of the claim.

In BERTHAN MACAULEY v JIM DIAMANTOPOULOUS, the plaintiff’s writ of summons

against the defendant was served on the defendant on December 21, 1961. On January 22, the
plaintiff wrote to the defendant that he would enter judgment in seven days, and on February 6, the
plaintiff entered judgment in default of appearance. On March 1, the defendant entered an
appearance and also filed a motion for an order setting aside the writ and service thereof and all
subsequent proceedings on grounds of irregularity. This motion was denied on the ground that the
defendant had delayed for an unreasonable length of time after gaining knowledge of the
irregularities. The defendant then moved that the judgment be set aside on the ground that his
supporting affidavit disclosed a substantial ground of defence. The court held that even though the
defendant treated the court with contempt by not appearing to the writ even when the plaintiff
wrote to tell him that he would enter judgment within a certain time, yet this was not a good ground
for refusing to set aside the judgment if there is disclosed a defence on the merits and the
circumstances warrant it. It granted the motion with costs against the defendant.
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2. Irregular judgment
It was held in YEMEN CO. LTD v WILKINS that proceedings in default must be in strict
compliance with the rules of procedure. And the defendant will be entitled to have the judgment
set aside ex debito justitae (i.e. as of right) where there is or has been an irregularity in obtaining
judgment in default. There is no discretion in such cases. A prominent example arises in cases where
the plaintiff enters judgment for more than he has claimed on his writ. A long line of cases including
GEE v BELL, HUGHES v JUSTIN and S.L.O.F. v PYNE-BAILEY show that in such a situation the
defendant will be entitled to have the judgment set aside.

3. Equity
Whether the defendant makes his application for the setting aside of default judgment on the
grounds that he has a meritorious defence, or on the ground that he is entitled ex debito justitae, the
fundamental principle remains: the decision lies at the discretion of the court and an order to set
aside judgment in default will not be granted where it would be inequitable to do so. As such,
judgment will not be set aside where it would cause hardship to either party or a third party. For
instance, the res might have changed hands. It would be complicated and unconscionable to third
parties for the court to direct that the res be handed back to the defendant. In such a situation, it is
unlikely that the court will set aside the judgment in default. In addition, although there is no
timeframe to make the application to set aside judgment in default, the defendant must apply within
a reasonable time, and his application will not be granted where he is barred by laches, for instance
if he waits, say, 5 years before making his application.

4. Terms
In any case where an order for the setting aside of judgment in default is granted, Order 13, Rule 9
provides that it is lawful for the court to make the same upon such terms as may be just. Usually,
this is costs, and in DARAMY v. NATIONAL TELECOMMUNICATIONS COMMISSION, per
Roberts J (as he then was), the learned judge, applying the principles in THE SAUDI EAGLE,
EVANS v. BARTLAM, VANN v. AWFORD, and DAY v. RAC MOTORING SERVICES, while
permitting the defendants to defend the action on the merits, he punished them in costs for allowing
judgment to be entered in default.

5. Default of appearing at trial

Where the defendant seeks to set aside judgment entered in default of his failing to appear at the
trial, the court considers different factors. In GRIMSHAW V DUNBAR (1953), it was held that the
principles which the court must take into account are (a) the reason for the defendant’s failure to
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appear when the case was heard, (b) whether there had been undue delay in making the application
so as to prejudice the plaintiff, (c) whether the plaintiff would be prejudiced by an order for a new
trial so as to render it inequitable to permit the case to be reopened, and (d) whether the tenant’s
case was manifestly insupportable.

Where however the defendant fails to appear because of a mere mistake, a new trial should be
ordered if it could be done without injustice (HAYMAN V ROWLANDS, 1957).

PRACTICE

1. For originating summons

If the originating process is an originating summons, the plaintiff should not enter judgment in
default. Instead, he may file a certificate stating that the defendant has not appeared, and make an
application to the judge for an appointment for the summons to be heard (Rule 10).

2. For writs & other originating processes

If there are multiple defendants, and judgment in default is given against one defendant, then the
plaintiff may proceed with the action against the other defendants.

Judgment in default of appearance may be final or interlocutory. The type of judgment which is
entered will depend on the plaintiff’s claim. If the claim is definite then judgment will be final. If
the value of the claim has to be assessed by the court, then the judgment will be interlocutory. A
single judgment may be final in some respects and interlocutory in other respects (Order 13, Rule
6).

If the originating process is a writ, notice of motion or petition, the plaintiff enters judgment against
the defendant at the Master and Registrar’s office.

Before the plaintiff enters judgment in default he has to file an affidavit stating: (1) that he duly
served the originating process on the defendant, and (2) that he searched the cause book at so and
so time and has not seen an entry stating that the defendants entered appearance. (Order 13, Rule
1).

Liquidated sum
Under Order 13, Rule 2, if the claim is for a liquidated sum of money, then the plaintiff may enter
final judgment for the sum claimed, at the interest rate specified, and for costs as well. If no interest
rate is specified, then the rate should be 5%. However, he should not enter judgment for more than
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he has claimed on his writ, otherwise the defendant will be entitled to have the judgment set aside.
(GEE V BELL, 1887) (HUGHES V JUSTIN, 1891), (S.L.O.F. V PYNE-BAILEY).

Unliquidated sum
Under Order 13, Rule 3, if the claim is for an unliquidated sum of money, then the plaintiff may
enter interlocutory judgment for damages to be assessed. He must then make an application to the
court to fix the date on which the damages should be assessed; the court will fix the date, and direct
that notice be given to the defendant who is in default (Order 13, Rule 4 (2). The defendant is entitled
to attend the assessment but will be heard on the issue of the quantum of damages only (Order 13,
Rule 4 (3).

Detinue
Under Order 13, Rule 4 (1), if the claim is in detinue the plaintiff has 3 options: (1) enter final
judgment for the delivery of the goods and costs, (2) enter interlocutory judgment for the value of
the goods to be assessed and costs, or (3) enter judgment in the alternative.

If the plaintiff enters interlocutory judgment for the value of the goods to be assessed and costs, he
must then make an application to the court to fix the date on which the value should be assessed;
the court will fix the date, and direct that notice be given to the defendant who is in default (Order
13, Rule 4 (2). The defendant is entitled to attend the assessment but will be heard on the issue of
the value only (Order 13, Rule 4 (3).

Land
Under Rule 5, if the claim is for possession of land, the plaintiff may enter final judgment for
possession. If the claim for possession includes claims for mesne profits, arrears of rent, double
value, breach of contract or damage to premises, then the plaintiff may enter final judgment for
possession, as well as final or interlocutory judgment for the other claims (depending on whether
they are liquidated or unliquidated).

Money lent
Under Order 13, Rule 11, if the action is for the recovery of money lent, then the plaintiff must
make an application by notice of motion supported by affidavit for leave to enter judgment in
default. Notice of the application may be served personally or at the last known address of the
defendant and should be served at least 2 clear days before the return date.
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Mortgage
Under Order 13, Rule 12, if the claim is based on a mortgage, then the plaintiff must make an
application supported by affidavit for leave to enter judgment in default. Notice must be given to
the defendant or other persons as the court thinks fit.

Other claims
It is impossible for Order 13 to specify all the possible types of claims. So, if the claim made by the
plaintiff is not covered by the order, then under Order 13, Rule 7, the plaintiff may set down the
action on motion for judgment. Notice of such an application should be given to the defendant. At
the hearing, the Court will decide what judgment the plaintiff is entitled to.

3. To Set Aside Judgment in Default

The defendant must make an application to the Court by summons supported by affidavit, to stay
execution of the judgment, to set aside the judgment, and for leave to defend the action. The affidavit
must contain the grounds of the application, and a draft defence must be exhibited (KABIA V
CONTEH). He may give a reason for his delay in entering appearance, but this is not a pre-requisite.