Sierra Leone Oxygen Factory Limited v P. E. Pyne-Bailey (CIV APP 1 of 1973) [1974] SLSC 5 (10 May 1974)

May 10, 1974

IN THE SUPREME COURT

Sierra Leone Oxygen Factory Limited

Appellant

v.

P. E. Pyne-Bailey

Respondent

CIV APP 1 of 1973

[1974] SLSC 5

Facts. Sierra Leone Oxygen Factory Ltd paid the defendant Le 1,350 in advance to rewind an electric motor used in making oxygen. It said the motor came back unusable after a long delay and had to be repaired by another firm, and it sued for the refund, special damages and general damages. On 14 June 1971 it obtained judgment in default of appearance for Le 1,350, with damages to be assessed, but in October 1971 it issued a writ of fieri facias to levy a much larger sum with interest. Ken During J refused the defendant's first application to set the judgment aside (9 November 1971). On a second application, made on the ground of irregularity, Tejan J set the judgment aside (30 November 1971), and the Court of Appeal (Cole CJ, Harding and Davies JJA) dismissed the plaintiff's appeal so that the matter could go to trial.

Issue. Whether the High Court could set aside the default judgment and execution on a second application after an earlier one had been refused, and whether the default judgment and the writ of fieri facias were irregular.

Proceeding. Civil appeal. Sierra Leone.

Held. Appeal dismissed. Browne-Marke JSC held that the second application rested on different grounds from the first, so it was properly brought. A court cannot ignore a patent irregularity, such as execution for more than the judgment, and has inherent jurisdiction to set aside its own judgment. Unliquidated damages must be assessed before execution, and under Order 50 rule 1 of the High Court Rules non-compliance with the rules does not make proceedings void. Livesey Luke JSC agreed: the default judgment did not comply with Order 10 rule 7, so it was irregular and the respondent was entitled to have it set aside ex debito justitiae. Costs to the respondent.