Mark v Pile

• Jurisdiction: Trinidad & Tobago
• Judge: Wooding, C.J.
• Judgment Date: 12 November 1962
• Neutral Citation: TT 1962 CA 19
• Docket Number: No. 219 of 1962
• Court: Court of Appeal (Trinidad and Tobago)
• Date: 12 November 1962

Court of Appeal

Wooding, C.J.; McShine, J.A.; Hyatali, J.A.

No. 219 of 1962

Mark

and

Pile

Appearances:

Mr. H. Hudson-Phillips appeared for the appellant.

Mr. Selby Wooding appeared for the respondent

Practice and Procedure - Trial — Non appearance of defendant at adjourned hearing of complaint — Defendant mistaken as to date — Hearing ex-parte — Appeal against conviction — Whether sufficient cause shown to order new trial. — Appellant was convicted for unlawfully and maliciously damaging the respondent's fence. Complaint had been heard in the appellant's absence. On appeal, appellant sought and obtained leave to file an affidavit explaining his absence at the trial. Consequently prayed for a new trial. — Through his own fault the appellant had failed to take advantage of the opportunity which he was given to defend himself. Application for a new trial refused. Appellant must pay respondent's costs.

Wooding, C.J.

1 In this case the court takes the view that the application could not be granted. The policy of the law is different as regards civil cases from what it is with regard to criminal matters. In civil cases rules exist which expressly provide for the setting aside of judgments which have been entered by default; and it is to be observed that when judgments are entered by default the normal practice is that they are so entered without any evidence being given on oath to support the judgment and are entered merely because of the failure to enter an appearance or deliver a defence. It is to be observed further that if at a trial when a civil case comes on for hearing the defendant does not appear, the complainant may proceed to prove his case by evidence on oath and, in those circumstances, there is no question of setting aside the judgment by default, which brings us very much closer to what the position is when one is dealing with the criminal law - because no conviction is entered against a defendant merely because he does not appear to answer the complaint laid against him. When such a defendant does not appear it still becomes necessary for the complainant to prove his case and, until he has proved his case to the satisfaction of the magistrate, there can be no conviction at all. Indeed, in a case not very long ago this court had occasion to upset the decision of a magistrate, which was made ex parte, because the evidence adduced before him was insufficient to satisfy the requirements necessary to prove the complaint. This case does not, therefore, stand on all fours with a case in which it is sought to set aside judgment by default. It is not a case for the court's discretion. It is rather a case whether a convicted person had any right to be heard upon an application to set aside a conviction which entered against him in his absence. No such ground of appeal is envisaged by the Ordinance. The question in this case, therefore, is whether, in the whole of the circumstances, any such right arises. Such a right arises when the conviction offends against natural justice in the defendant was given no opportunity to he heard. And the case of ...