Spenser Wilkinson J:

In this case the respondent who was the plaintiff in the Magistrate's Court obtained judgment in default in the absence of the appellant when the case was called on for hearing.No defence had been filed, although it should have been filed two days before the hearing.The appellant subsequently made an application to set aside the default judgment on the ground that he had attended at the wrong Court on the day fixed for hearing and also that he had a good defence to the claim.

The case was heard by the President of the Sessions Court sitting as a Magistrate.The appellant appealed both against the judgment and against the refusal of the learned Magistrate to set aside the judgment on two main grounds.The first point taken was that the Summons in the action was headed "In the Magistrate's Court at Georgetown" but called upon the defendant to appear before the Sessions Court at 9.30 a.m. on 12 October 1954.His complaint was that this Summons was bad in form as it left the appellant in doubt as to where to attend and did not indicate in which Court his defence was to be filed.

If this point had stood alone, I do not think it would be sufficient to induce me to reverse the learned Magistrate's decision. I am inclined to agree with Counsel for the appellant that a Summons headed "In the Magistrate's Court" calling upon a defendant to appear in the Sessions Court although not actually irregular is at least confusing. I think it would make for greater clarity if the Summons stated that the defendant was to appear in the Court House of the Sessions Court, but I do not think the appellant in this case was seriously misled.

In my opinion, however, there is more substance in the appeal against the refusal to set aside the judgment on the ground that the defendant had a good defence on the merits.It would appear from the Court File that the defendant's written defence had, in fact, been filed before the application was made to set aside the judgment and, although this defence was late, I think it should have been looked at. A Court will always be inclined to set aside a judgment in default upon suitable terms, if it is satisfied that the defendant has a good defence on the merits, and the written statement filed in this case appears to me to disclose a defence.

In reaching his decision the learned Magistrate appears to have relied to some extent upon the decision in J M Gomes & Co. V. Saurajen Visva Nathan [1953] 1 MLRH 484, [1954] 1 MLJ 3 . As this question of default judgments in Subordinate Court is of considerable practical importance I think I ought to make some comments upon that decision, which, as I read it, turned rather upon the question of default of defence than upon the question of setting aside a judgment.In the first place a very significant fact in that case was that at no material time was any defence to the claim disclosed.This is of the greatest importance, because upon the English authorities it is clear that in the High Court when it is sought to set aside a judgment which is regular it is an almost invariable rule that merits should be shown (see notes in the Annual Practice, 1954, to O. 27 r. 15 under the heading "Regular judgments"). The case in question, moreover, was an appeal against a decision of the Sessions Court precluding the defendant from defending a claim.No application had been made (as was done in the case now before me) to the Sessions Court to set aside the judgment and in so far as the Appellate Court was asked to set aside the judgment this was on the ground that the order appealed against was wrong.The appeal was not based or argued upon the inherent power of the Court to set aside a judgment in default upon such terms as may be just. I think this is clear, because none of the English cases relating to setting aside default judgments was cited or referred to.

Had the defendant in that case been able to show that he had a substantial ground of defence the learned Judge,