Parkins v Jalloh, 1972-73 ALR S.L. 58

SECTION 9 THE AFRICAN LAW REPORTS providing a competent and proper person to superintend and direct the work. I also find that the appellant was negligent in rushing to the assistance of Kanu and Kamara without first stop­ ping the conveyor belt which I am satisfied he knew how to do. 5 As regards ground 6, it is clear from what I have already stated above that the verdict is unreasonable and cannot be supported having regard to the evidence. The result is that the appeal succeeds. The appellant is awarded damages to the extent of 90% and the respondent company to the 10 extent of 10% even though they have not pleaded contributory negligence. We order that the matter be referred to the court below for assessment of damages after hearing argument. The costs in the court below and in this court to the appellant are to be taxed. 15 Order accordingly. 20 25 30 35 40 PARKINS and ANOTHER v. JALLOH and 14 OTHERS Court of Appeal (Forster, J.S.C., Cornelius Harding and Percy Davies, JJ.A.): March 2nd, 1972 (Civil App. No. 32/71) [1] Civil Procedure-judgments and orders-default judgment-plaintiff in default of appearance per incuriam-entitled to apply to trial court to have judgment set aside and case retried: Although the Court of Appeal has jurisdiction to hear a direct appeal from a judgment given in default of the plaintiff's appearance per incuriam, such appeals will not be encouraged: the proper procedure, which the plaintiff is entitled to follow by reason of the High Court Rules, O.XXV, r.12, is to apply to the trial court to have the judgment set aside and the case relisted for trial (page 62, lines 14-29; page 63, lines 10-16). [2] Civil Procedure-judgments and orders-default judgment-plaintiff's application to set aside judgment to be made first to trial court, not Court of Appeal: See [1] above. · [3] Courts-court of Appeal-jurisdiction-appeals from default judgments­ court has jurisdiction but party in default should apply first to trial court: See [1] above. The appellants brought an action in the High Court against the respondents seeking damages for trespass. As all but one of the respondents were evading service of the writ of summons upon them, the appellants applied to the High 58 PARKINS v. JALLOH, 1972-73 ALR S.L. 58 C.A. court for substituted service and this was granted. When the case came on for trial in the High Court before During, J. after two adjournments, neither the appellants nor their counsel were present. The case was dismissed in default of the appellants' appearance, with costs to the respondents. 5 The appellants immediately applied to the court, under the High Court Rules, O.XXV, r.l2, to have the default judgment set aside and to have the case restored to the list, on the ground that their absence at the trial caused by a mistake of fact, namely, that the case was fixed for hearing on October 26th instead of October 10 25th, 1971. The court (Tejan, J.) refused the application, holding that it had no jurisdiction to set aside the default judgment and that the proper course was to appeal against it. On appeal, the appellants contended that the trial judge (Tejan, J.) failed to appreciate the distinction between dismissal on the 15 merits and dismissal for default, and was wrong in law in refusing their application to have the default judgment set aside and the case restored to the list, and that applying to the High Court under O.XXV, r.12 was the proper procedure. The Court of Appeal also considered whether it had jurisdiction to hear appeals against 20 default judgments. The appeal was allowed and a retrial ordered. Cases referred to: (1) Armour v. Bate, [1891] 2 Q.B. 233; (1891), 65 L.T. 137, applied. 25 (2) Vint v. Hudspith (1885), 29 Ch. D. 322; 52 L.T. 741, dicta of Cotton, L.J. applied. Legislation construed: High Court [formerly Supreme Court] Rules (Laws of Sierra Leone, 1960, cap. 7), O.XXV, r.11: The relevant terms of this rule are set out at page 61, lines 34-38. r.12: The relevant terms of this rule are set out at page 62, lines 2-6. Court of Appeal Rules, 1960 (P.N. No. 36 of 1961), r. 35: "The Court may from time to time make any order necessary for deter­ mining the real question in controversy in the appeal, and may direct the Court below to enquire into and certify its finding on any question which the Court thinks fit to determine .... " Marcus-Jones for the appellants; Carew for the respondents. 59 30 35 40 THE AFRICAN LAW REPORTS FORSTER, J.S.C., delivering the judgment of the court: The dismissal of the case between the parties to this appeal in the court below by During, J. has given rise to an important point of law which clearly needs an authoritative ruling from this court. 5 The main facts leading up to the appeal are that on January 22nd, 1971 the plaintiffs (now the appellants) issued a writ of summons against the 15 defendants (now the respondents) in the court below, claiming against the respondents jointly and severally for: 10 (a) Damages for trespass. (b) An injunction restraining the defendants and each and every one of them, their servants, agents and privies from entering upon the land or any part thereof. (c) Further or other relief. 15 On April 1st, 1971 the sheriff's assistant bailiff swore to an affidavit in which he stated that he verily believed the respondents were evading service of the writ of summons which he could effect on only one of them. The appellants' counsel then applied to the court for substituted service on April 4th, 1971 and this was 20 ordered by During, J. On June 12th, 1971 the respondents by their counsel filed a defence and the action was subsequently entered for trial on June 19th, 1971, the hearing to commence on July 7th, 1971. Thereafter nothing was recorded of the case till after the intervening long vacation when it came before Tejan, J. 25 on September 16th, 1971. On this occasion, the appellants were represented by counsel deputising for their original counsel, but the respondents were represented by their original and another counsel; the case was then adjourned to October 25th, 1971. On the fateful adjourned date, that is, October 25th, 1971, both the 30 appellants and their counsel were absent but the respondents' original counsel was present and During, J. then dismissed the case with costs to the respondents in as many words. The appellants immediately, on October 27th, 1971, moved the court for the restoration of the case on the ground that their non- 35 appearance or their counsel's was occasioned by a mistake of fact, namely, that the case was fixed for hearing on October 26th, instead of October 25th, 1971. At the hearing date, November lOth, 1971, the appellants were represented by yet another counsel who was obviously deputising for their original counsel, 40 though not so stated in the record of the court below, and the respondents by their constant counsel. The motion was heard by 60 PARKINS u. JALLOH, 1972-73 ALR S.L. 58 C.A. Tejan, J. and his notes were brief, as follows: ''Mr. McCormack: This is an application to re-list the case that was struck out. Note: Mr. McCormack's attention was drawn by the court to the order made dismissing the action. 5 Mr. McCormack: In the circumstances, I withdraw the application. Court: This case was dismissed by the order of During, J. on October 25th, 1971. The case cannot be re-listed. The plain- tiffs' right is to appeal against the order. In the circumstances, 10 the application is dismissed. Costs to be taxed and paid by the plaintiffs/applicants." The appellants thereupon filed their appeal against the order of Tejan, J. of November lOth, 1971 on November 15th, 1971, the grounds being: 15 "(a) The learned trial judge failed to appreciate the distinc­ tion between dismissal on the merits and dismissal for default, and was wrong in law in refusing an application to set aside on terms the order of the Hon. Mr. Justice During made on October 25th, 1971 dismissing the action for non-appearance 20 of counsel or parties, on the ground that such an order could only be appealed against, as he had no jurisdiction to set it aside. (b) In the alternative, the action was wrongly dismissed and should be restored to the list." 25 The appellants seek by this appeal to have the action re-listed for hearing before the court below. The court heard counsel on both sides and took time thereafter to advise itself more fully on the law and practice relating to the question whether the court below was right in refusing the appli- 30 cation of the appellants for the dismissed case to be re-listed. Order XXV, r.ll of our Supreme Court (now High Court) Rules (cap. 7) reads: "If, when a trial is called on, the defendant appears and the plaintiff does not appear, the defendant, if he has no counter- 35 claim, shall be entitled to judgment dismissing the action, but if he has a counter-claim, then he may prove such counter- claim so far as the burden of proof lies upon him." The respondents here filed a defence but no counterclaim and During, J. dismissed the action upon default of appearance of the 40 appellants. A consequential proviSion in r.12 of the said Order 61 THE AFRICAN LAW REPORTS states: "Any verdict or judgment obtained where one party does not appear at the trial may be set aside by the court upon such terms as may seem fit, upon an application made within six 5 days after the trial or within such time as the court or a judge may allow." And in any case the court can, if it thinks it expedient in the interest of justice, postpone or adjourn a trial at which either party defaults in appearance for such time and to such place and 10 upon such terms, if any, as it shall think fit. Several cases were cited by contending counsel before us but I am of opinion that of these, two are perhaps the most relevant and helpful. They are Vint v. Hudspith (2) and Armour v. Bate (1). In Vint's case, it was held that although the Court of Appeal had 15 jurisdiction to hear a direct appeal from a judgment by default, such appeals will not be encouraged. The proper course for a party against whom judgment had been given by default is to apply to the judge who heard the cause to set aside the judgment and to re-hear the cause. Cotton, L.J. said in his judgment (29 Ch.D. at 20 323-324; 52 L.T. at 741): "We are of opinion that the Plaintiff's proper course was to apply to the Judge to restore the cause on the ground that the Plaintiff was absent per incuriam. I am far from saying that this Court cannot entertain an appeal from the judgment 25 made by default, but in a case like the present it is important to prevent the Court of Appeal from being flooded by having to hear cases in the first instance. It is therefore right that the Plaintiff should first apply to the Judge who gave the judg­ ment to restore the action. It cannot be said that the Plaintiff 30 did not know that the action was going on against him. He has only himself to thank for all the difficulty that has occurred. The appeal must stand over for a fortnight, to give time for the Plaintiff to make such application to the Judge as he may be advised." 35 The other case cited is Armour v. Bate (1) and is of equal importance in determining this appeal. When that case was called on for trial, the defendant appeared and the plaintiff did not; there being no counter-claim, it was held that the defendant was not entitled under O.XXXVI, r.32 of the English Rules of the 40 Supreme Court to have judgment entered for him but that judg­ ment should be entered dismissing the claim for default of appear- 62 IF I PARKINS v. JALLOH, 1972-73 ALR S.L. 58 C.A. ance of the plaintiff. Lord Esher, M.R. delivered the judgment of the court and said, inter alia ([1891] 2 Q.B. at 234 & 235; 65 L.T. at 137 & 138): " ... the plaintiff did not act upon rule 33 of [Order XXVI], and ask that this judgment might be set aside as he might 5 have done within six days after the trial, but waited sixteen days and gave notice of appeal .... We think that the judg- ment should be drawn up stating that the action was dismissed for want of appearance of the plaintiff at the trial." I am of opinion that a plaintiff against whom a judgment has 10 been obtained by his default, as in this present case before us, is, under our laws, entitled to apply to the trial court to have that judgment set aside within six days after the trial or within such time as that court or a judge may allow. The Court of Appeal Rules, 1960, r.35, gives jurisdiction to us 15 to entertain this appeal and to make such order or orders as we deem necessary for determining the real question in controversy in the appeal. I would have agreed to make an order in this case as was made by the English Court of Appeal in the case of Vint v. Hudspith (2) that is, that the appeal be stood over for a fortnight 20 or some such definite period, to give time for the appellants to make such application to the court below which dismissed the action or to a judge as they may be advised, but I can see that this will not be convenient to this court, changing its panel as it does on rotation, leastways, for the foreseeable future, and I therefore 25 would allow the appeal and order the action to be re-listed for trial without undue delay. The appellants will have their costs in this court and I would assess them at Le25.00 jointly. Appeal allowed; retrial ordered. 30 35 40 63