LEVENTIS MOTOthers LIMITED v G.C.S. MBONU (Suit No. JD/90/1959) [1961] NGHC 13 (18 July 1961)

**LEVENTIS** **MOTORS** **LIMITED** **(PLAINTIFFS)** **_v._** **G.C.S.** **MBO****NU** **(D****EFENDANT)** **(1962)** **N.N****.L.R.** **19** **(1961)** **All** **N.L.R.** **560** **Div****i****si****o****n:** High Court (North) **D****at****e** **o****f** **Judgment:** 18th July, 1961 **C****as****e** **Num****b****er:** Suit No. JD/90/1959 **Before:** Reed, J. Motion on Notice by plaintiff to set aside Judgment. The plaintiffs' claim was for the sum of £4,204-5 _s_ -6 _d_. The writ was issued and the case was listed in the Undefended List. The defendant was served but did not file a Notice of Intention to Defend, nor was he present nor represented when the matter came up for hearing. Through error, the plaintiff's Counsel asked for Judgment, not in the sum demanded in the Writ, but in the sum of £294-2 _s_ -10 _d_. Judgment was duly entered in that sum. Upon discovering the error, the plaintiffs brought this Motion on Notice asking the court to set aside the Judgment and to enter Judgment in the correct amount, to wit, £4,204-5 _s_ -6 _d_. The defendant appeared and opposed the motion. **_HELD_**** _:_** (1) A default Judgment entered in an undefended case, where the defendant has neither appeared nor given Notice of Intention to Defend, is a final Judgment of the court. (2) A final Judgment, even though obtained through the default of the defendant, cannot be set aside upon a Motion brought by the plaintiff in the original proceedings on the ground that through an error on the part of the plaintiff the amount for which Judgment was requested and entered (being a sum less than that claimed in the Writ) was less than the amount actually due on foot of the claim; unless the defendant consents to the granting of such Motion. _Motion_ _dismissed._ _C_ _a_ _s_ _e_ _s_ _re_ _f_ _e_ _r_ _r_ _e_ _d_ _t_ _o_ _:__-_ _Vint_ _v._ _Hudspith,_ 29 Ch.D. 322; 54 L.J. Ch. 844; 52 L.T. 741; 33 W.R. 738. _Hickman_ _v_ _._ _Berens,_ (1895) 2 Ch. 638; 64 L.J. Ch. 785; 73 L.T. 323; 12 R. 602. _Ainswort_ _h_ _v_ _._ _Wilding_ _,_ (1896) 1 Ch. 673; 65 L.J. Ch. 432, 74 L.T. 193, 44 W.R. 540; 12 T.L.R. 270; 40 Sol. Jo. 354. _Re_ _Affair_ _s_ _o_ _f_ _Elstein_ _,_ (1945) 1 All. E.R. 272. _O_ _r_ _d_ _er_ _s_ _a_ _n_ _d_ _r_ _u_ _l_ _e_ _s_ _re_ _f_ _er_ _r_ _e_ _d_ _t_ _o_ _:__-_ _S_ _uprem_ _e_ _Cou_ _r_ _t_ _(__C_ _ivi_ _l_ _Proced_ _u_ _re_ _)_ _Rules_ _,_ Order XXVIII, rule 11, Order XL, rule 5 MOTION on Notice. _Grant_ for the Plaintiffs. _A_ _g_ _b_ _o_ _k_ _ob_ _a_ for the Defendant. Reed, J. (whose Judgment was read by Holden, J.):-This is a motion on notice by the plaintiffs asking the court to set aside the Judgment of Smith J. (as he then was) given in the case on 22nd April, 1960. The motion is opposed by the defendant. The facts upon which the plaintiffs rely are set out in the Affidavit of Mr Quinn, a member of the firm of solicitors who are acting for the plaintiffs. The solicitors acted for the plaintiffs and also for A. G. Leventis and Company Limited, a company separate and distinct from the plaintiffs. On the instructions of the plaintiffs the solicitors applied for the issue of a writ of summons against the defendant claiming the sum of £4,204-5 _s_ -6 _d_. The writ was issued and the case was put on the Undefended List. A.G. Leventis and Company instructed the solicitors to institute legal proceedings against the defendant to recover the sum of £813-14 _s_ -0 _d_ and later wrote to the solicitors stating that the defendant had paid the sum of £519-2 _s_ -10 _d_. On 22nd April, 1960, the case now before me, that is the plaintiff's claim against the defendant for the sum of £4,204-5 _s_ -6 _d_ , came before Smith J. on the Undefended List. The defendant was not present or represented and no notice of intention to defend had been filed. Counsel who appeared for the plaintiffs mistook the instructions of A.G. Leventis and Company for the instructions of the plaintiffs and asked the judge for Judgment for the sum of £294-2 _s_ -10 _d_. Judgment was thereupon entered for that amount with costs. At the time, the defendant was indebted to the plaintiffs in the sum of £4,204-5 _s_ -6 _d_ and that amount still remains due. The question is whether the procedure by way of motion on notice is correct. I quote from Halsbury, 2nd edition, volume 19 at 267, paragraph 568:- A Judgment given or order made by consent may, in a fresh action brought for the purpose, be set aside on any ground which would invalidate an agreement not contained in a Judgment or order, such as that the consent was the result of a mistake or that it was _ultra_ _vires_ on the part of one of the consenting parties. But unless all the parties agree, an application cannot be made to the court of first instance in the original action to set aside the Judgment or order, except, apparently, in the case of an interlocutory order. In my view Smith J's Judgment was a consent Judgment taken under a mistake. It is true that the defendant did not appear and consent but the case was on the Undefended List and by his failure to appear he is presumed to have consented. Mr Grant referred me to two cases in support of his argument that the correct procedure is by way of motion. One was _Vint_ _v._ _H_ _udspith,_ 29 Ch.D. 322. But in that case the plaintiff had been absent when Judgment was given against him and it was he, the plaintiff, who sought to have the Judgment given in his absence set aside. It was held that the correct procedure was by way of application to the judge and the same procedure applies here by virtue of Order XL, rule 5, of the Supreme Court (Civil Procedure) Rules. The other case was _Hickman_ _v._ _Berens,_ (1895) 2 Ch. 638. But this case was considered and distinguished in a subsequent case, _Ainsworth_ _v_ _Wilding,_ (1896) 1 Ch. 673, upon which I rely. In _Ainsworth_ _v._ _Wilding_ there was a motion to discharge a Judgment given at the trial of the action. The application was made in the action in which Judgment was given and the ground of the application was that the Judgment, which was based on the consent of the parties at the trial, was consented to under a mistake on the part of the applicant. The respondent raised the objection that the court had no jurisdiction to discharge the Judgment on such a motion. Romer J. stated at 676:- I think that a fresh action must be brought and that I have no jurisdiction to hear the matter on motion, at any rate without the consent of the parties. I have offered to hear it if all parties will consent; but the required consent has been refused. The court has no jurisdiction, after the Judgment at the trial has been passed and entered, to rehear the case. That is clear.... So far as I am aware, the only cases in which the court can interfere after the passing and entering of the Judgment are these: (1) Where there has been an accidental slip in the Judgment as drawn up-in which case the court has power to rectify it under Order XXVIII, rule 11; (2) when the court itself finds that the Judgment as drawn up does not correctly state what the court actually decided and intended. Romer J. went on to say that different considerations applied to interlocutory orders. As to _Hickman_ _v._ _Berens_ _(supra)_ he said:- The last case is _Hi_ _c_ _km_ _a_ _n_ _v_ _._ _B_ _e_ _re_ _n_ _s_. As to that case, in the first place, the compromise there made was more in the nature of a compromise on an interlocutory proceeding, and no order was drawn up. Moreover, no objection was taken on the ground that the compromise could not be set aside on motion, but only in a fresh action; and it is clear that an objection of that kind must be taken at once or it will be held to have been waived, as is pointed out in _Gilbert_ _v._ _Endean,_ 9 Ch.D. 259. That case, therefore, is no authority for setting aside the Judgment on motion. I also refer to _Re_ _Affairs_ _o_ _f_ _Elstein,_ (1945) 1 All E.R. 272. A County Court judge has made a consent order and later one of the parties applied for a variation of the order on the ground of mistake. The County Court judge refused the application on the ground that the Order was exactly what he had intended and as he understood the parties intended it to be. The applicant appealed and Lord Greene, M.R., in the Judgment of the court dismissing the appeal said:- I cannot find that this is a case in which we can say that, according to the ordinary practice, the mistake, if it be a mistake, can be remedied by an application in the proceedings themselves once the order has been completed, as it has been completed in this case. If, indeed, there is any remedy in this case, it must be a remedy by independent action on which evidence can be called, and the relevant facts ascertained. In the case before me the order was final, not interlocutory. Smith J. did not make a mistake; his order was what the plaintiffs intended it to be. There has been no mistake in drawing up the order. The defendant does not consent to this motion. In my view, on the authorities which I have cited, there is only one course open to the plaintiffs to obtain the relief they seek-and that is by way of a separate action. This motion is dismissed with five guineas costs to the defendant. _Motion_ _dismissed._