Martin Mwanga v. Essak Esmail & Sons, Civ. App. 7-D-68, 24/7/68, Biron J.

Martin Mwanga v. Essak Esmail & Sons, Civ. App. 7-D-68, 24/7/68, Biron J.

Plaintiff sued defendant for goods sold and delivered, and was granted an ex parte order in the absence of defendant. Prior to judgment, defendant had written to plaintiff, agreeing that he owed him “some money” and promising to pay it. A copy was sent to the Resident Magistrate with the not attached; “I am prepared to pay the said sum in production of all the Invoices signed by me.” Defendant argued on appeal (i) than his letter constitute a written statement of defence in that it did not accept the full claim of the plaintiff, but required proof of the alleged debt by way of production of invoices, and (ii) that the claim was never proved in court.

            Held: Appeal allowed. “Although the appellant defendant’s letter does not really constitute a formal written statement of defence, it certainly is a very strong indication that he was not admitting the claim, therefore, if the magistrate was not prepared to accept this letter as a written statement of defence, it was his duty to so inform the appellant and direct him to file a proper written statement of defence. In any event, he had certainly no right or justification to make an ex parte order in the absence of the defendant, and even without the claim having been proved, which violates all the principles natural justice. “