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Billiam v Gadaoengin [1978] NRSC 7; Civil Appeal 1 of 1978 (19 May 1978)

[1969-1982] NLR (A) 134

IN THE SUPREME COURT OF NAURU

Civil Appeal No. 1 of 1978

SAMUEL BILLEAM

v

VASSAL GADEOENGIN

19^th May, 1978.

Procedure - action in the District Court - judgment entered in default of appearance - no application to District Court to set aside judgment - appeal to Supreme Court.

Appeal against judgment: entered, in default of appearance, against the appellant in a civil action for liquidated damages in the District Court. No application was made to the District Court to set aside the judgment before the appeal was commenced.

Held: Where judgment has been entered against the defendant in a civil action in the District Court in default of his entering an appearance and he has a good defence to the claim, the correct procedure is for him to apply to the District Court under order 11 Rule 9 of the Rules of Court for the default judgment to be set aside. Until that has been done and a decision given by the District Court, no grounds exist for an appeal to the Supreme Court.

Appeal dismissed.

R. Kaierua for the appellant
D. Gioura for the respondent

Thompson CJ:

There is no basis for this appeal. The proper course for the appellant to have followed was to apply to the District Court under order 11 Rule 9 for the judgment to be set aside. Whatever the decision of the District Court, an aggrieved party could then, if he wished, appeal against it to this Court. There would then be evidence available and a decision to be considered. As it is, there is no evidence upon which this Court can decide the appeal and there is no decision of the District Court, only a judgment entered in accordance with rules of procedure. There is no allegation that it was entered in breach of those rules. The remedy which the appellant seeks is provided by the rules and he must seek it in accordance with those rules, rather than come straight to this Court. This appeal is premature and misconceived It is dismissed.