Default Judgment on the Kanifing Yard

Regular versus irregular. A default judgment is regular where the defendant was duly served, the time for appearing expired, and the rules for entering judgment were followed. It may be set aside only on the court's discretion and on terms. A judgment is irregular where service was defective or the rules were not observed; such a judgment is set aside almost as of right (ex debito justitiae), often with costs, and the defendant need not show a defence. The plaintiff's complaint about delay is therefore beside the point if the judgment is irregular.

Service on a company. Service on a body corporate is effected under the Companies Act and the procedural rules by leaving the process at the registered office, by registered post to the registered office, or by service on a director or the secretary. Service elsewhere - a yard, a branch, a site office - requires an order for substituted service, obtained on affidavit evidence showing why the prescribed mode cannot be used.

Application. The writ was left at the operating yard, not the registered office, and was handed to a security contractor's watchman who is not shown to be the company's employee or agent. No order for substituted service was sought. On those facts service was not validly effected and the default judgment is irregular.

Additional irregularity. Two of the claims are not for a liquidated sum: damages for breach of contract must be assessed, so a default judgment on those heads is interlocutory - judgment for damages to be assessed - not a final judgment for a fixed figure. Entering final judgment for D1,450,000 without an assessment is itself a breach of the rules and a further ground for setting aside, independently of the service point.

Conclusion. The judgment should be set aside as irregular; the plaintiff may apply for substituted service and, if so advised, re-enter judgment limited to damages to be assessed.

Framework. Where the judgment is regular, the court exercises a discretion. The defendant must explain the failure to appear, show an arguable defence with a real prospect of success (a triable issue, not a trial of the action), apply promptly, and show that the plaintiff will not suffer prejudice that cannot be compensated in costs. Conditions, including payment into court or security for costs, are commonly imposed.

Delay. Judgment was entered in March and the application made in June. Three months is not inordinate where the defendant says it had no knowledge of the proceedings, but the explanation must be supported by evidence: when and how the company learned of the judgment, and what it did then. If the company cannot explain how it remained ignorant of a claim of this size, the delay weighs against it.

Evidence. The affidavit is sworn by an accounts clerk without personal knowledge; that is hearsay on the material facts and is vulnerable. The court should require a further affidavit from a director or the transport manager with knowledge of the contract, of the December 2021 settlement, and of the company's address arrangements. Alternatively, the court may direct cross-examination on the affidavits.

Limitation. The limitation defence is arguable and must be taken in the defence, not merely mentioned. The pleaded position is that the breach arose in 2018, but the plaintiff sues on a 2021 settlement agreement and on misrepresentation. Counsel should analyse whether the 2021 agreement was a fresh contract or an acknowledgment that restarted time, and when the alleged misrepresentation was discovered, since that cause of action accrues on discovery. Confirm the applicable limitation period under the Limitation Act rather than assuming a six-year rule.

Outcome. Leave to defend should ordinarily be granted, with conditions, unless the defence is fanciful; it is not for the court at this stage to decide limitation. If the defence is thin, a condition of payment into court protects the plaintiff.

Choice of procedure. A declaration may be sought by writ where the underlying facts are substantially in dispute. The originating summons is appropriate where the question turns on the construction of a document or on facts that are not contested. Here the plaintiff alleges misrepresentation, an oral contract, and termination - all contested - so the writ is the correct vehicle; proceeding by originating summons would risk the claim being struck out or converted.

Joinder. Delivery up of the trailers is a claim for specific relief and is properly joined with the damages claim, provided the particulars identify the trailers and the basis of the proprietary or possessory right asserted.

Pleading. The claim to avoid the 2021 settlement must plead the representations relied on, when and by whom they were made, why they were false, that they induced the agreement, and whether rescission or damages is sought. Rescission requires that the parties can be restored to their positions; if the trailers and money have moved, that must be addressed. A bare assertion that the agreement 'is void' will not do - misrepresentation makes a contract voidable, not void.

Jurisdiction. The High Court has unlimited original jurisdiction, so a claim of this value and complexity belongs there. If the monetary claim alone had fallen within the subordinate court's cap and no title or declaration were sought, transfer might be considered. A declaration affecting land or status would keep the matter in the High Court regardless of value.

Practical step. The defendant should, in the same motion, seek an order that any fresh default judgment be limited to damages to be assessed, and should apply for the claim to be properly particularised before pleading a substantive defence.