Case Summary:
The plaintiff was the RP of a piece of
land. The fifth, sixth, seventh and eighth defendants all occupied various
portions of the land. The fifth, sixth, seventh and eighth defendants applied
to set aside the judgment in default ('JID') entered against them. The fifth,
sixth and seventh defendants claimed that the JID obtained was not based upon
merit and therefore the JID should be set aside. The eight defendant in
addition averred that the writ of summons and statement of claim was not served
on him and as such the JID could be set aside as of right.
Held
1) The plaintiff's service of the writ
and statement of claim upon the fifth, sixth, seventh and eighth defendants is
proper and as such the JID had been regularly obtained, as no memorandum of
appearance had been entered within the eight days time period.
2) None of the defendants have put forward a defence on the
merits. It is not disputed that the plaintiff is the RP of the land. As such
the plaintiff is entitled to obtain an indefeasible title in the land free of
adverse claims pursuant to s.340 of NLC.
3) All the defendants argue that they have a defence and the
defence is that they are in occupation of the land. But their defence cannot be
sustained as mere occupation is not sufficient to displace the right of the
plaintiff as RP to vacant possession.
4) Neither has the plaintiff given any licence, consent or
permission to the defendants to occupy the land.
5) As such having regard to the matters pleaded by the
defendants in their respective affidavits in support I conclude that the
defendants have not put forward a defence on the merits.
Held, dismissing the applications with costs RM3,000:
(1) The court has first to identify
whether the judgment in default is a regular or irregular judgment. It is well
settled that if the judgment is irregular then it ought to be set aside ex
defitio justitiae. It if is regularly obtained then the principle expounded
in Evans v Bartlam [1937] 2 All ER 646 as confirmed by the Federal Court
in Hasil Bumi Perumahan Sdn Bhd & Ors v United Malayan
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