CIVIL PROCEDURE—Default decree— Order to set aside_proof of sufficient cause. Civil Justice Ordinance 1929, s. 69.

In an application to set aside a default decree, based on illness at the time of the hearing, a defendant who lives a long way from a hospital is not required to produce a medical. certificate to establish “sufficient cause” under Civil Justice Ordinance 1929 s. 69

Faith Awouda   Acting P.J., August 16, 1960:- This is an application to revise the order passed by District Judge, Shendi, who refused to set aside a default decree he passed in CS-45-1959 unless defendant would deposit £S.408.300m/ms. in Court

The default decree was passed on November 10, 1959 and application to set it aside was submitted on November 22, 1959. The cause assigned by applicant for his non-appeal was that he was suffering from some pain in his eyes on the day fixed for the hearing of the suit. The learned District Judge passed the aforementioned order after having refused the cause as being not true, for applicant had failed to furnish what the District Judge called a “medical certificate.”

Civil Justice Ordinance 1929,’s. 69, under which the application was entertained, does not say that on failure to assign sufficient cause on the part of the defendant the default decree must be set aside on such terms as the Court may direct. The contrary is the correct meaning, i.e., applicant must assign sufficient cause; that being done the Court then must set aside the default decree on such terms as the Court may direct, such as payment into Court pending final adjudication. It then becomes obligatory on the Court to set aside the default decree.

What is sufficient cause? No hard and fast rule can be laid down as to what is sufficient cause. It is a question not of law but of fact, and each case depends on its own merits. In deciding whether the cause is sufficient, it should be borne in mind that in order to promote the ends of justice, every party should be given opportunity to defend his case except in cases of inexcusable fault and neglect. Applicant lives in a place called Salawa, west of Bannaga Station, far away from a hospital. To ask him to produce a medical certificate as the only method of proving that he was prevented from attendance becouse of an illness of some sort is, in these circumstances, most inequitable. He could have been put on oath, for example, in the absence of other methods.

The sum, the subject matter of claim, is quite big and accordinly to pay it into Court as a condition precedent to setting aside the ex parte decree is harsh.

In these circumstances I give you permission to review your order in the light of this note