Default of Appearance
Introduction:
This note will discuss the meaning of default of appearance, judgement in default of appearance and the nature of judgement a plaintiff may apply for based on the nature of his claim. The main order that will be used is Order 10 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47).
Meaning of Default of Appearance:
A default in appearance occurs when the defendant fails to enter an appearance within the stipulated eight-day period from the date of service, including the date of service.
Meaning of Judgement in Default of Appearance:
This is a judgement the plaintiff may apply for following a failure of the defendant to cause an appearance to be entered for him within the stipulated time for the entry of appearance. Remember that on the writ of summons, the defendant is informed that judgement may be given in his absence if he fails to cause appearance to be entered for him. The judgement that will be given is not automatic but must be applied for by the plaintiff.
Nature of Judgement a Plaintiff May Apply For:
The nature of judgement a plaintiff may apply for depends on the nature of his claim as endorsed on his writ. In Order 10 of C.I. 47 , various judgements may be applied for based on the nature of the plaintiff’s claim. The following are varied claims and their associated judgements:
1. Liquidated Claim or Demand:
A. Nature of Judgement
Per Order 10 Rule 1, if the plaintiff is making a liquidated claim, the plaintiff may apply for
i. Final judgement for a sum not exceeding the amount claimed by the writ. And
ii. Costs.
Meaning of Liquidated Claim: Per Black’s Law Dictionary, 9 th ed., this is:
A claim for an amount previously agreed on by the parties or that can be precisely determined by operation of law or by the terms of the parties' agreement. 2. A claim that has been determined in a judicial proceeding
In the case of Fofie v. Pomaa and Others [1974] 2 GLR 6-12 , the court characterised a liquidated claim as follows:
It has been explained at page 35 of the Supreme Court Practice 1967 that a liquidated demand is in the nature of a debt, i.e. a specific sum of money due and payable under or by virtue of a contract. This amount must either be already ascertained or capable of being ascertained as a mere matter of arithmetic.
In Order 10 Rule 1(2), it is further provided that a claim shall not be prevented from being treated as a liquidated claim simply because part of the claim is for interest accruing after the date of the writ at an unspecified rate, but any such rate shall be calculated from the date of the writ to the date of entering judgement or final payment at the same rate as the prevailing commercial bank rate.
Meaning of Final Judgement: A judgement is said to be a final judgement if it can only be varied or set aside by an appellate court. Per Black’s Law Dictionary, 9 th ed., final judgement is:
A court's last action that settles the rights of the parties and disposes of all issues in controversy, except for the award of costs (and, sometimes, attorney's fees) and enforcement of the judgement. Also termed final appealable judgement.
If the claim is a liquidated claim, the court simply awards the plaintiff the liquidated claim, thereby disposing of the controversy. If the court awards more than the liquidated claim, the judgement will be set aside. In the case of Bonsu v. Doe [1984-86] GLR 778 CA, Jiagge JA stated the position of the law when she said:
The legal position is that a judge may set aside a judgment entered in default either of appearance to the writ, or of delivery of a pleading or of appearance at the trial when the judgment was entered for a greater amount than was due or where there had been breach of good faith. The judgment will be set aside ex. debito justitiae, quite apart from any consideration whether there was a good defence on the merits: See Halsbury’s Laws of England (3rd ed). Vol. 22 paragraph 1667. Judgment in default of appearance should be entered only for the actual amount due at the time of signing the judgment.
B. Processes to Draft:
i. A search that requests for two main things:
ii. An ex-parte application for the liquidated sum.
iii. A supporting affidavit which contains the following:
4. A prayer for an order to enter final judgement against the defendant for the liquidated sum.
Below are samples of the processes:
2. Unliquidated Claim or Demand:
A. Nature of Judgement:
Per Order 10 Rule 2, if the plaintiff’s claim is for an unliquidated claim, the plaintiff may apply for:
i. An interlocutory judgement against the defendant for damages, which will be assessed later.
Meaning of Unliquidated Claim:Per the Black’s Law Dictionary, an unliquidated claim is “a claim in which the amount owed has not been determined.” Thus, there is money involved, but the amount of money has not been determined.
Meaning of Interlocutory Judgement: Per the Black’s Law Dictionary, an interlocutory judgement is:
An intermediate judgment that determines a preliminary or subordinate point or plea but does not finally decide the case. A judgment or order given on a provisional or accessory claim or contention is generally interlocutory.
The reason why the plaintiff cannot apply for final judgement but must apply for interlocutory judgement is that since the claim is unliquidated, the court cannot enter judgement for a specific sum. Instead, the court issues an interlocutory judgement, which establishes the defendant’s liability but defers the determination of damages to a later stage, usually requiring further proceedings (such as an assessment of damages hearing). In Order 10 Rule 3(2), it is provided that:
Where the plaintiff enters interlocutory judgment for damages under rule 2 …, the Court shall fix the date on which the damages or value shall be assessed and direct that notice of it shall be given to the defendant against whom the interlocutory judgment has been entered.
Thus, upon giving the interlocutory judgment in favour of the plaintiff, the court shall set another date to assess how much the plaintiff is entitled to. It is essential to note that at this stage, the defendant must be notified of the hearing.
B. Processes to Draft:
i. A search that requests for two main things:
1.Whether the writ was served on the defendant. This is because in Order 10 Rule 7 (1), it is provided that “Judgment shall not be entered against a defendant under this Order unless… the plaintiff files an affidavit proving due service of the writ or notice of the writ on the defendant;”
2.Whether the defendant has entered appearance. This is because in Order 10 Rule 7 (2), it is provided that “Where in an action an application is made to the Court for an order affecting a party who has failed to file appearance, the applicant shall satisfy the Court that the party is in default of appearance.” The plaintiff satisfies the court that the defendant is in default of appearance by giving evidence of such default.
ii. An ex-parte application for interlocutory judgement.
iii. A supporting affidavit which contains the following:
1. That the defendant has been served with the writ.
2. That the defendant has failed to enter appearance.
3. A prayer for interlocutory judgement against the defendant.
Below are samples of the processes:
3. Claim in Detinue:
A. Nature of Judgement:
Per Order 10 Rule 3, if the plaintiff’s claim relates to detention of goods, the plaintiff may apply for:
i. The delivery of the goods or their value to be assessed and costs. Or
ii. The delivery of the goods and costs. Or
iii. For the value of the goods to be assessed and costs.
In Order 10 Rule 3(2), it is provided that:
Where the plaintiff enters interlocutory judgment for damages under rule 2 or for the value of goods under this rule, the Court shall fix the date on which the damages or value shall be assessed and direct that notice of it shall be given to the defendant against whom the interlocutory judgment has been entered.
Thus, if the plaintiff seeks to claim value of goods detained by the defendant, the court, upon giving judgement to the plaintiff, shall fix a date for the assessment of the value of the goods and direct that notice of that date be given to the defendant. If the defendant appears for the assessment of the damages, he can only make submissions relating to the assessment and not to the judgement itself or the grounds upon which it was made.
B. Processes to Draft:
Apart from the searches, you draft an ex parte application for the delivery of the goods or their value to be assessed and costs, or for the delivery of the goods and costs, or for the value of the goods to be assessed and costs.
4. Claim for the Possession of Immovable Property:
Per Order 10 Rule 4, if the plaintiff’s claim relates to detention of goods, the plaintiff may apply for:
i. Judgement for possession of the immovable property
ii. Cost.
If there are multiple defendants and some have entered appearance, the judgement for possession of the immovable property shall not be enforced against any defendant unless and until judgement for possession of the immovable property is entered against all the defendants.
5. Mixed Claims:
It is possible for the plaintiff’s claim to not fall exclusively within any of the claims discussed above. For example, in a single action may contain a claim for a liquidated sum, an unliquidated sum, and for delivery of goods detained by the defendant. In such cases, Order 10 Rule 5 provides that the plaintiff may:
apply for judgment against that defendant in respect of any such claim as the plaintiff would be entitled to apply for under those rules if that were the only claim made, and proceed with the action against the other defendants, if any
For example, in the mixed claim described above, the plaintiff may apply for:
i. Final judgement for the liquidated sum.
ii. Interlocutory judgement for the unliquidated sum
iii. And delivery of goods for the detained goods.
This is because these are the judgements the plaintiff will be entitled to in respect of each claim. Thus, a plaintiff cannot apply for final judgement for the unliquidated sum and the detention of the goods, because he is not entitled to those judgements for those claims. Summarily, the plaintiff must separate the claim and apply for the appropriate judgement.
6. Claims not Provided For:
Per Order 10 Rule 6, if the plaintiff’s claim is neither for a liquidated or unliquidated sum, possession of immovable property, or a claim in detinue, the defendant may:
i. Proceed with the action as if the defendant had filed or entered appearance.
ii. If the plaintiff does not proceed with the action, he may apply for the award of costs against the defendant.
Conclusion:
This note examined the concepts of default in appearance and judgment in default of appearance, as well as the types of judgments a plaintiff may seek when a defendant fails to enter an appearance. In discussing the nature of the judgement, it was stated that where the plaintiff’s claim is for a liquidated sum, he can get final judgement in default of appearance. On the other hand, where the plaintiff’s claim is for an unliquidated sum, he is only entitled to an interlocutory judgement and the amount is assessed later. In assessing the amount, notice must be given to the defendant. The note also discussed the judgement a plaintiff is entitled to if his claim is for detinue or contains several claims that are not of the same kind. In a subsequent note, we will discuss what a defendant can do following the plaintiff’s obtention of a judgement in default of appearance.
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