DEUTSCHE GESELLSCAFT FUER TECHNISCHE ZUSAMMENARBENT (GTZ) GMBH, GTZ v BANGURA (CC 493/07 )  SLHC 4 (04 June 2008);
CC 493/07 2007 D NO 14
IN THE HIGH COURT OF SIERRA LEONE
COMMERCIAL AND ADMIRALTY DIVISION BETWEEN: -
FUER TECHNISCHE ZUSAMMENARBENT
(GTZ) GMBH, GTZ
33/37 FRASER STREET
OFF WILKINSON ROAD FREETOWN PLAINTIFF
MRS LAUREL BANGURA
FOR AND ON BEHALF OF THE MOVEMENT
AND PROGRESS FOR SIERRA LEONE,(MEPSIL)
3 DUNDAS STREET, FREETOWN DEFENDANT
VIVIAN M SOLOMON FOR THE PLAINTIFF / RESPONDENT LEONARD TAYLOR - FOR THE DEFENDANT /APPLICANT RULING DELIVERED THIS 4TH DAY OF JUNE 2008. D.B. EDWARDS, J. By Notice of Motion dated 20th February 2008 made under action intituled CC493/07 DNO14, the Defendant in this action applied to this Honourable Court for the following orders:
1. That the writ of summons in this action and all subsequent proceedings be set aside ex debito justitiae for non compliance with order 4 rule 1 of the High Court rules 2007.
2. That the writ of summons in this action and all subsequent proceedings be set aside for non compliance with Order 10 Rule 7 of the High Court Rules 2007.
3. That the JUDGMENT in default of appearance dated 18th July 2007 and all subsequent proceedings be set aside for non compliance with order 13 Rule 6 of the High Court Rules 2007.
4. That the JUDGMENT in default of appearance dated 18th July 2007 and all subsequent proceedings be set aside as the defendant has a good defence on the merits .
5. That leave be granted to the defendant to file a defence and defend the action.
6. That this Honourable Court grants a stay of execution of the Judgment of 18th July 2007 and all subsequent proceedings pending the hearing and determination of this application.
7. Any further order that this Court shall deem just and expedient.
8. That the costs of and incidental to this Application be costs in the cause
I have particularly noted the orders prayed for in this application and the affidavit in support of same which was sworn to on the 20th February 2008 by the defendant's solicitor. I have also considered with keen interest the arguments of the defendant applicant's solicitor.
Firstly, that Order 4 Rule 1 of the High Court Rules 2007 required the plaintiff to state the division of the court to which this matter was to have been filed which had not been done.
Secondly, that by Order 10 rule 7 of the High Court Rules 2007 or Order 6 Rule 9 of the old High Court Rules 1960, the writ of summons must be indorsed with the day of service within 3 days of service which he claimed not to have been done .
Thirdly, that the claim was a liquidated claim but that the plaintiff entered an Interlocutory Judgment in default of appearance all of which he stated constituted non compliance with the rules or an irregularity which called for the Judgment of 18th JULY 2007 and all subsequent proceedings to be set aside ex debito justitiae. The defendant's solicitor further argued that should this court consider the Judgment to be regular then he has a good defence on the merits, the same which he argued was exhibited as Exhibit LT9 and ought to be given an opportunity to defend the action.
The Plaintiff's solicitor vehemently opposed the application and filed an affidavit in opposition sworn to on the 26th of February 2008 together with several exhibits referred thereto to wit exhibits A - D. She also filed a supplemental affidavit the same which was sworn to on the 28 OF February 2008 and to which exhibits E,F and G were attached.
On the issue of non-compliance with Order 4 rule 1 this court takes judicial notice of the fact that the new High Court Rules, Constitutional Instrument No 8 of 2007 only came into force on the 25th of June 2007 and notes that this writ was issued on the 8th of June 2007 when the new rules which made it a requirement that
"every action commenced in the court shall have as part of its title an indication of the division of the court to which it relates"
had not yet come into force. That apart, I should think that failure to comply with this provision by the plaintiff even if the rules were applicable does not make the proceedings a nullity, but is only irregular and constitutes an irregularity that could be cured by the courts and do not provide grounds by which you could or should set aside a judgment in default of Appearance.
Turning to the issue of Order 10 Rule 7 of HCR 2007 and Order 6 rule 9 HCR 1960, the defendant's solicitor has contended that the plaintiff did not comply with this rule regarding indorsement after 3 days whether under the old rule or new rule but this court disagrees with him. This is so because the defendant did make an attempt to enter appearance which showed that indeed he was served. The role of the indorsement of service is to prove service and proof of service is by
i) the indorsement of service within 3 days after service ;
ii) by the affidavit of service ; and
iii) by appearance of defendant
i) and ii) above are compulsory requirements but in practice only becomes relevant when the defendant fails to appear and the plaintiff seeks to take a further step in the proceedings based on the default of appearance. The need for indorsement was however waived by the fact that the defendant did make an attempt to enter appearance. Why would the defendant try to enter appearance if he was not served. The said appearance though was never sealed and therefore not within the law and a nullity.
This court further notes that the affidavit of service even though it never exhibited a writ of summons showing an indorsement on it within 3days clearly showed that the process server, one Teslime Savage did depose on the said affidavit that he indeed indorsed on the said writ the day and month and week of the said service on the defendant .If the defendant is contesting this pursuant to Order 6 rule 9 of the of the old High Court Rules 1960, it would have been the correct step for him to have requested the deponent process server to have been cross examined. I should think that the onus was on him to prove that there was no indorsement in light of what the plaintiff had deposed in his affidavit of service and this he failed to do. He has exhibited was a certified true copy of the writ of summons. This was not the writ served on the defendant and proves nothing and this court takes the affidavit of service by Teslime George as sanctimonious. Having noted the above points one must not lose sight of the fact that the so called appearance apart from being unsealed and a nullity, was further still, out of time as the defendant was served on the 22nd of June 2007 and barring the 8 days allowed for appearance under the old rules he should have entered appearance on the 30th of June 2007; the new rules had by then come into force but it did not by any implication change 8days to 14 days as the time stated on the writ stated 8 days and was never amended to read 14days . The provision relating to part heard matters to wit Order 62 Rule 3 (1) HCR CI No 7 of 2007 which provides
"These rules shall apply to any cause or matter part heard on the date when these rules come into operation."
would not in this court's opinion apply in any way as this matter was not yet heard and therefore not part heard. Even if the 14 days rule by then applied the defendant only purported to enter appearance on the 3rd of July 2007 with an unsealed memorandum of appearance This to my mind makes the default Judgment of 18th July 2008 a regular Judgment . The correct procedures were followed before entering a Judgment in default of appearance on the 18th of July 2008 viz. an affidavit of service was filed; an affidavit of search was filed and a search receipt exhibited and the same disclosed that no appearance had been entered and further more the plaintiff had not breached any of the rules of procedure. The Judgment of 18th July 2008 therefore cannot be set aside ex debito justitiae, a predicament reserved only for irregular judgments.
In the case of GRANVILLE FILLIE VS THE REPRESENTATIVE WORLD HEALTH ORGANISATION AND JOSEPH MONROVIA CC1215/ 2005 2005 F NO 51 unreported this court noted the distinction between these sets of default judgment as follows :
"A regular judgment is a judgment obtained adhering correctly to the rules of procedure laid down but denying the court the opportunity to pronounce judgment on the merits or issues or by consent. An irregular judgment is one in which the correct rules and procedures have not been adhered to while at the same time denying the court the opportunity to pronounce judgment on the merits or issues or by consent"
Because of this salient distinction between the two types of judgments the method of treating them differ in that where a judgment has been obtained irregularly the defendant is entitled to have it set side ex debito justitiae. See the case of ANLABY VS PRAETORIOUS 20 QBD 764. But before he could be entitled to this right to set aside the judgment on the ground that it was irregularly obtained, the defendant must be able to specify in the motion to set aside, the grounds of the irregularity; and the affidavit in support of the motion too, must show the circumstances under which the required procedures as laid down by the rules of court were breached and disclose the nature of his defence
It is safe to conclude that the defendant has failed to show the circumstances under which the required procedures were breached moreso with particular reference to the indorsement. The defendant is placing a heavy reliance on the case of YEMEN COMPANY LIMITED VS WILKINS 1950-56 ALRSL PAGES 377-383 specifically because it involved a case of indorsement where the court held that it was requirement of the rules for indorsement of service within 3days of service of the writ but as stated earlier the bailiff who served stated in the affidavit of service that the said indorsement was made and the defendant was unable to disprove it .Worse still this case does amplify the fact that unexplained delay in making an application to set aside is fatal
The defendant is also contesting that the Judgment of 18th July 2008 ought to be set aside in that the writ or claim was for a liquidated sum as evinced by exhibit LT3 the default Judgment but that an Interlocutory Judgment instead of a Final Judgment was entered making the Judgment irregular. The plaintiff concedes to the fact that it was a liquidated demand but that the fact that an interlocutiry judgment was entered instead of final judgment was a mistake or slip which ought not work out adversely as to nullify the judgment for non compliance. She relied on order 2 Rule 1 of HCR 2007 which provides thus:
"Where in the beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of any thing done or left undone, being a failure to comply with the requirement of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings or any document, judgment or order in therein"
She noted further that under Order 2 Rule 2 of HCR 2007 which provides
(l.)"An application to set aside for irregularity, any proceedings or any document, judgment or order therein shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.
an applicant contesting such irregularity must come within a reasonable time and that in the present case the applicant has taken from the 18th of June 2007 to the 22nd of February 2008 to make this application a period spanning 8 months and that worse still no reason for the delay was proffered before this court.
I should agree with the plaintiff on this point. I take support for this from the fact that the Authourities taken as a whole, and this includes reference to cases like SINGH VS ATOMBROOK LTD ( 1989) 1 ALL ER 385-395 CA; LEAL VS DUNLOP BIO PROCESSES INTERNATIONAL PROCESSES LIMITED(1984)2 ALL ER 207-216 CA; FIELDING VS RIGBY (1993) 4 ALL ER 294-299; RE PRITCHARD(DECEASED)(1963)1 ALL ER 873-885 AND HARKNESS VS BELL 'S ASBESTOS AND ENGINEERING LIMITED(1966)3 ALL ER 843-847 show that Order 2 rule 1 should be applied liberally so far as is reasonable and proper , to prevent injustice being caused to one party by the mindless adherence to technicalities in the rules of procedure. In the case of Re Pritchard Lord DENNING noted this in his dissenting judgment by stating at page 876 thus
"True it is that the plaintiff will not be allowed to introduce new cause of action or substitute a fresh case or rectify errors of Substance but he will be allowed to correct technical defects. If the plaintiff.................has made a technical slip in his procedure then he will be allowed to rectify the defect if it can be done without injustice to the defendant.
In the case of HARKNESS VS BELL'S ABESTOS the principle set out by Lord Denning was upheld such that the question this court has to decide is whether the mistake by the plaintiff was a technical defect or not or was it an error of substance . In RE
PRITCHARD LORD UP JOHN LJ at page 883 opined 3 situations were proceedings may become nullities as follows;
1. proceedings which ought to have been served but have never come to the notice of the defendant
2. proceedings which have never started at all owing to some fundamental defect in issuing the proceedings and
3. proceedings which appear to be duly issued but fail to comply with a statutory requirement
In the current case before this court we are not even talking about proceedings but a judgment and need I point out that the mistake was in the form of the judgment and nothing more. The question which this court has to deal with is whether the defendant's position by the said irregularity in the judgment has been prejudiced. I should think not. If the defendant's position cannot be prejudiced; if the technical error in the judgment can rectified then there could be no gainsaying that the Judgment ought not be set aside. In the case of RUSSEL VS KOMBE (1962) SLLR at page 19-22 Bankole Jones Ag CJ at page 20 opined
"that the court has discretionary power to prevent technical objections from defeating a Plaintiff's claim where a bonafide mistake has been made"
It is the opinion of this court that the objection herein is a mere technical one and does not cause any injustice to the defendant hence the fruit of the judgment cannot be lost on the plaintiff for the reason of defect inform of the judgment . That apart Under Order 22 rule 11 of the High court Rules 2007 which provides;
"That the court may on such terms at it thinks just set aside or vary any judgment entered in pursuance of this Order"
It would seem to me that the discretion of the court is not just limited to set aside but to vary judgment in default of appearance but this would only be on the assumption that the judgment was regularly obtained which was clearly the case in this matter as the plaintiff complied with the rules leading to the entering of Judgment in default of defence except that in the Judgment itself there was a mistake in the way it was laid out.
Further or in the alternative the defendant's solicitor has contended that the defendant has a good defence on the merits and places heavy reliance on Exhibit LT9 THE PROPOSED DEFENCE . The plaintiff in reply submitted that in the entire affidavit paragraphs 1-16 there was no mention of what this defence was or actually is; rather it was only in paragragh 14 that the defendant stated that he had a good defence going to the merits and exhibited her defence Exhibit LT9 as a good defence on the merits. I. should note that by the case of KABIA VS CONTEH 1964 -66 ALR SL PAGE 359-360 this may be irrelevant so long as the affidavit shows they have a good defence on the merits and this may be by exhibiting a draft defence which they did .
While it may be sufficient to just state and exhibit the draft of the defence i.e. the proposed defence, the question does arise as to whether that proposed defence Exh LT9 constitutes a good defence on the merits .In other words whether the defence in its entirety raised issues or circumstances for which it may be well advised by the courts to exercise discretion to set the judgment aside and grant leave to defend. The law on the subject has time and time again been restated"
In the case of the House of Lords decision in EVANS VS BARTLAM (1937) AC 473
Lord Wright at page 489 stated as follows:
"In a case like the present there is a judgment, which though by default, is a regular Judgment, and the applicant must show grounds why the discretion to set aside should be exercised in his favour. The primary consideration is whether he has merits to which the court should pay heed; if merits are shown the court will not prima facie
desire to let a judgment pass on which there has been no proper adjudication."
A meritorious defence was defined in the case of ALPINE BULK TRANSPORT CO INC VS SAUDI EAGLE SHIPPPING CO INC, the Saudi Eagle (1986) 2 LLOYDS REPORT PAGE 221, CA as a defence which must have "a real prospect of success" and "carry some degree of conviction" and the court must be able to form a provisional view of the probable outcome of the action.
It is clear to me that the judgment of 18th June 2007 was a regular Judgment obtained by default after due process. I should however think that the defence filed taking the Saudi eagle test into consideration was one which may have chance of succeeding. There may be more to it that meets the eye form the current document s before this court I would therefore give leave to defend out of time on terms. This court therefore orders as follows.
1. Setting aside the default Judgement dated 18th July 2007 for non compliance or irregularity is refused .
2. the judgment of 18th July 2007being a regular JUDGMENT IS hereby set aside on terms that the defendant pays the costs occasioned by the long delay in making the said application assessed Le 1,500,000and that the same be paid within 5 days of this order.
3. Leave is hereby given to the defendant to defend the action out of time.
4. I give the following directions
a) that the defendant files a defence out of time within 5 days of this order
b) the plaintiff files a reply if any within 10 days after reply
c) that there be exchange of lists and documents within 7 days from the last day limited for reply
d) that thereafter the parties are given 14 days to exchange witness statement
e) that the date for the trial is fixed for the 26th of June 2008 f) Liberty to apply for further directions
Hon Mr. Justice D B Edwards J