Default Judgment

Question 1

You act for the plaintiff in a HC action. the claim is for the unpaid purchase price of certain goods which your client had previously sold and delivered to the defendant. After being served with a copy of the summons on 10 January this year the Defendant ignores it, and the dies induciae have expired. Your client instructs you to obtain DJ

Briefly explain the procedure which you would follow to obtain judgment indicate clearly who would consider the application

Answer 1

The defendant is in default of entering appearance to defend and plaintiff is entitled to apply for DJ. Plaintiff must file with registrar of court a written application for DJ in duplicate and this must be accompanied by a draft order to be granted by the registrar when granting judgment.

Question 2

Must the defendant be given notice of the application?

Answer 2

No the defendant is in default Rule 31(4)

Question 3

Draft the relevant document containing the application. omit the heading/ending. your answer should clearly indicate what other original documents you would need to place before person considering the application

Answer 3

The Plaintiff hereby applies that:

1. Summons having been properly served on the Defendant on (date);
2. The time for entering appearance to defend having expired on (date);
3. The defendant not entering an appearance to defend, judgment by default be given in favour of the plaintiff against the defendant as claimed in the summons for:
   i) Payment of sum of
   ii) Interest thereon at the rate of __ tempora morae;
   iii) Costs of Suit

Take notice that the Plaintiff;s original summons and Sheriffs ROS is attached hereto in support of this application.

Question 4

Would answer be different if the Plaintiffs claim was for damages? Indicate fundamental differences if any in procedure

Answer 4

Answer would be different yes. Oral evidence be required in order to prove the quantum of plaintiffs damages. procedurally the matter would have to be set down for hearing on the Unopposed Motion Court Roll. A Notice of Set Down would then be required. The plaintiffs witnesses must give viva voce evidence.

Question 5

Would answer be different if action had been defended and you were applying for judgment in circumstances where defendant is in default of delivery of a plea?

Answer 5

Yes, as Rule 31(5)(a) obliges the Plaintiff to give the Defendant not less than 5 days notice of his intention to apply for DJ when defendant is in default of delivery of a plea after service of a Notice of Bar ito Rule 26