John Grisby V. M. S. Jubwe & Ors (1954)
Practice and Procedure—Defendant not appearing at the hearing—Case with written pleadings—Judgment without evidence in claim for damages which had not been admitted—Supreme Court (Civil Procedure) Rules, Order 40, rule 3, and Order 41, rules 1, 2, 3.
jurisdiction—Consul appearing on application—Consul accepting order for pleadings—Consul putting in defence claiming diplomatic immunity.
The plaintiffs (now respondents) sued the defendant for damages in tort. When they applied for an order to sue in a representative capacity, he appeared and opposed the application; and on the return day he appeared and pleadings were ordered; to the statement of claim he filed a defence confined to a claim to be exempt from the jurisdiction of the Court on the ground of diplomatic immunity as a consul. When the action came on for hearing the Judge gave judgment on the plaintiffs’ claim without hearing evidence.
The defendant appealed, his grounds being (1) that the Judge erred in holding that he had submitted to the jurisdiction, and (2) in giving judgment without hearing evidence, and (3) in not allowing him to file a defence in answer to the allegations in the statement of claim.
Rule 3 in Order 40 provides (briefly) that if the defendant does not appear the Court may proceed to hear evidence and give judgment on the evidence adduced by the plaintiff; and rules 1, 2, and 3 in Order 41 provide (briefly) that in a case with pleadings the party with the burden of proof shall begin and call evidence.
(1) The defendant had submitted to the jurisdiction by appearing and opposing a motion and by accepting an order for pleadings—which made it unnecessary to decide whether as a consul he was not subject to it;
(2) The case not being one on the undefended list, the plaintiffs had the duty to prove their case; for damages are deemed to be put in issue unless expressly admitted, which they were not in this case;
(3) In the circumstances the defendant would be allowed to put in a defence and the case would then be tried.
Appeal allowed; judgment set aside; directions given for trial.