Most debt claims are not disputed; the debtor simply has not paid. Division 3 of Part VIII gives the creditor a way to judgment without a hearing, while giving the debtor a clear chance to say he does dispute it.
When a default summons is issued
Notwithstanding anything in this Act, other than Section 21, on complaint made in respect of a debt or other liquidated demand in money payable by the defendant the Magistrate or Clerk before whom the complaint is made shall, instead of issuing a summons in the ordinary form, if so required by the person making the complaint, and subject to this Division, issue a summons to the defendant under this Division.
Two conditions: the claim must be liquidated, and the complainant must ask. The Clerk then has no discretion. The Magistrates’ Manual notes that this is the one situation in which a Clerk is obliged to form a view about the nature of a claim, and must advise the complainant whether it qualifies. The money limit in section 21 applies as usual.
What is a liquidated demand
A claim in debt is for a specific amount and is liquidated. So is any claim where the amount is able to be made certain by mathematical calculation from factors in the possession or knowledge of the party from whom the demand is made: arrears of rent under a lease, the price of goods sold, an agreed loan. A claim that includes a component requiring assessment at trial, such as general damages or loss of opportunity, is not liquidated. The Manual’s example is a repair estimate for a damaged vehicle: a specific figure, but an opinion, not a fact, until the repair is paid for.
| Default summons available | Ordinary summons required |
|---|---|
| Unpaid invoices for goods delivered | Damages for defective goods |
| Loan of K3,000 repayable on demand | Compensation for injury in a fight |
| Rent arrears of K400 a month for five months | Loss of business caused by a nuisance |
| Wages at an agreed rate for hours worked | Damages for wrongful dismissal |
| A cheque that was dishonoured | The cost of repairs not yet done |
Service: the six-day rule
A default summons shall be in the prescribed form (Form 42), and there shall be attached to it two notices of intention to defend in the prescribed form, and it shall be served not less than six days before the day of return by delivering a true copy to the defendant personally, or to a company under the Companies Act, or to a corporation’s chief officer or by post to it, with the two notices attached. The server makes an affidavit endorsed on the original stating that the copy with the notices was personally served and when, and returns it to the Clerk; the affidavit is prima facie evidence of service.
Note the differences from an ordinary summons: six days, not 72 hours; personal service on an individual, with no provision for leaving it at the abode; and the two notices, one for the defendant to keep and one to serve. Because section 11(4) of the Interpretation Act excludes Sundays and holidays from periods of eight days or less, six clear working days are needed.
The notice of intention to defend
If the defendant or his legal representative does not give notice of his intention to defend by serving notice at least 48 hours before the time appointed for the return of the default summons on the Clerk at the place where the Court sits, and personally or by post on the complainant at his address in the summons, or on his legal representative, the complainant need not attend personally or otherwise or prove his claim, and an order in his favour may be made by the Court in his absence.
The defendant has to do two things: serve the Clerk and serve the complainant, both at least 48 hours before the return date. A notice served on one and not the other is not compliance. What the defendant must do, and what happens if he does not, are in how do I defend a default summons.
The order without a hearing
The Manual insists that a magistrate processing a default judgment, though neither party may be present, is performing a judicial act, and should check (1) that the amount claimed is a debt or liquidated sum; (2) that service has been effected properly; (3) that no notice of intention to defend has been filed; and (4) that the required times have elapsed. A default summons for an unliquidated claim should not be allowed to proceed. An order made without proper service is liable to be set aside, and the defendant may not learn of it until enforcement begins, which the Manual describes as the worst outcome for everyone.
The order is a District Court order like any other, enforceable by warrant of execution, garnishee or, for a fraudulent debtor, commitment; see enforcement. Section 152 then bars any other action for the same debt.
Setting aside
Section 159 allows the Court, on being satisfied by affidavit or statutory declaration that the defendant has a good defence, to set aside the order, reinstate the complaint, stay any warrant of execution and give leave to defend on terms, on 48 hours’ notice to the complainant with the affidavit attached. See setting aside a default judgment.
Claims against the State
Section 12(3) of the Claims By and Against the State Act provides that where the State is in default judgment may be entered for the sum claimed only where the claim relates to a debt only; in all other cases judgment is for damages to be assessed. And section 9(d) gives the State 90 days to respond to a District Court summons, which overrides the 48-hour rule. See suing the State.
The District Courts Act and Regulation are not on PacLII; both are on vLex (Act, Regulation).
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.