IN THE HIGH COURT OF THE REPUBLIC OF SIERRA LEONE

IN T HE MATTER BETWEEN: DECORE FURNITURE COMPANY          -  PLAINTIFF

AND

ZEEN MOUERN STERN MONDAY 12™ FEBRUARY, 2007

BEFORE THE HONOURABLE MRS.

JUSTICE A. SHOWERS J.

VIVIAN M. SOLOMON - FOR THE PLAINTIFF WRIGHT & CO.            - FOR THE DEFENDANT

CLAIM         -          SUM DUE

BEFORE THE JUSTICE A SHOWERS

RULING

By notice of motion dated 28th June 2006, the defendant/applicant herein is seeking an order that the court sets aside the judgment in default of defence dated 19th May 2006 and all subsequent proceedings pursuant to the provisions of Orders 10r10. Orders 23 r 15 and Orders 25 r 12 of the High Court rules.

In support of the application is the affidavit of the applicant herein. In the said affidavit, the applicant deposed to the facts of the case and the circumstances leading to the failure on the part of his solicitors in filing his defence within the time stipulated for doing so. He stated that he has a good defence disclosing triable issues.

In his submission to the court, counsel for the defendant/applicant submitted that a default judgment can be set aside if the defendant shows that he has a good defence showing triable issues and that the matter ought to be heard on its merits. He referred to the proposed defence exhibited to the affidavit in support and stressed that on the basis of that defence the court ought to grant the orders prayed for. He referred to the case of Evans vs. Bartlam in support of his contusion.

He further submitted that the judgment was irregularly obtained and ought to be set aside as it was not obtained pursuant to Order 11 of the High Court Rules. He submitted that the plaintiff ought to have applied for leave to enter final judgment as provided for an

Order 11 Rule l(a) and his failure top do so rendered the judgment irregular. He • contended that where a default judgment has been irregularly obtained, it must be set aside and leave granted for the defendant to defend the action. For this contusion he cited the case of SLOF vs. Pyne Bailey, an unreported Supreme Court decision.

Counsel for the plaintiff/respondent herein opposed the application and referred to the affidavits in opposition filed herein. She submitted that the crux of the argument canvassed by the applicant is that on obtaining the judgment in default of defence. The plaintiff ought to have complied with Order 11r1 and that his failure to do so rendered the judgment irregular. She submitted that the application is misconceived for reason that Order 11 deals with the situation where plaintiff choses to take out a summons for leave to enter final judgment if the defendant does not have a good defence. In this case she submitted the plaintiff obtained a judgment in default of defence simplicities, as the defendant failed to file hs defence within the time prescribed by law. She further submitted that they are not obliged to invoke the provisions of Order 11. Furthermore, she submitted that the applicant has applied for the judgment to be set aside pursuant to the provisions of Order 1 Or 10 of the said High Court Rules was also misconceived as those provisions only apply where there has been a trial and there has been none in this case.

Next, she referred to the provisions of Order 23 r 15 relied upon by the applicant and submitted that although those provisions are applicable in the circumstances of this case, however the rules provide that the applicant must show cause why the judgment in default should be set aside and in this case the reason given is that the defendant failed to comply with order 11 r 1 which she submits does not apply here. She contended that the prayer for leave to defend the action can only succeed if the judgment is set aside and since the applicant has prayed for the judgment to be set aside for failure to comply with Order 11 r 1 which does not apply in these circumstances. The application cannot be granted and the application to file the defence pursuant to Order 11 must also fail. These are the submissions of counsel for the parties herein. I believe the first issue to be determined is whether or not the judgment in default of defence dated 19th May 2006 entered herein is regular or irregular. It is quite clear that the defendant has failed to file his defence within the time prescribed by law for him to do so. The plaintiff is therefore at liberty to enter judgment against him. Now, the question is was the plaintiff wrong to have entered judgment in default of defence simpliciter or ought he to have sought leave to do so under the provisions of Order 11. It is my view that the plaintiff had a choice

here he could have opted to comply with the provisions of Order 23 which deal with default of pleadings. In this case he opted to enter judgment in default. I therefore hold that the said judgment was regularly obtained.

The next issue to be determined is whether the judgment having been regularly obtained ought to be set aside. The Defendant/applicant has submitted that it ought to be set aside because he has a good defence disclosing triable issues. But then he goes on to submit that he ought to be given leave to defend pursuant to the provisions of Order 1 lr 1,3 and 6. As counsel for the plaintiff has rightly pointed out those provisions do not apply, the application ought to be dismissed.

I think the provisions which apply here and which counsel for the defendant has invoked are those of Order 23 r 15. The provisions are quite clear. It states and I quote "any judgment by default whether under this order or under any other of these rules, may be set aside by the court upon such terms as to costs or otherwise as such court may think fit". Order 27 r 15 of Annual Practice 1960 is pessima verba on Order 23 r 15 and at page 615 under the rubric "Regular judgment" it states as follows:-"If the judgment is regular then it is an almost inflexible rule that there should be an affidavit of merits i.e. an affidavit stating facts showing a substantial ground of defence -Farder vs. Richter (1889) 23 Q.B.D. 124".

The affidavit in support of the motion herein satisfies this condition. I believe the defense shows triable issues and the matter ought to be heard on its merits. In the circumstance, the judgment in default of defence dated 19th May 2006 is hereby set aside on terms that the defendant/applicant pays the costs of this application. The defendant is hereby granted leave to file his defence. The defence is to be filed and served within 5 days from the date hereof. The plaintiff is at liberty to file a reply if any within 7 days from the service on it of the said defence. The proceeding is to take its normal course thereafter. Costs of this application to be borne by the defendant are assessed at Le. 500,000.00

A. SHOWERS 12/2/07