Whether one has a cause of action which has accrued, a cause of action accrues where there is right enforceable against a liable person, proper parties, capacity to institute action, per Akrong v Bulley since she failed to obtain LA action under the Fatal Act was nullity for lack of capacity, although she could have sued as a dependent of deceased she did so as a successor which is different from the former. Which court, venue, generally apart from landed property action instituted where defendant resides.
Cause of action is a legal right arising where certain material facts exist entitling one to remedies, e.g. in Detinue action existence of facts to warrant action, Plaintiff owner having possession of goods, defendant not being owner took away goods without lawful excuse or consent or permission of plaintiff, owner has demanded the return but defendant has refused to deliver.
Default of Appearance
O 10 failure of defendant to enter appearance within 8 days of service of writ, plaintiff by ex parte motion application for judgement in default of appearance. If liquidated claim plaintiff entitled to final judgement, if not liquidated interlocutory judgement and date fixed for assessment of damages, since damages needs be proved, hearing notice of assessment served on defendant and will be heard on assessment only unless applies to set judgement aside.
Proof of service: O 10r7 for default judgement to be successful plaintiff must plead due service of writ or notice of it on defendant, by attaching search conducted at the registrar’s office proving service. Default judgement can’t be entered without leave of court in moneylender’s actions O 10r9 or Mortgages actions O10r10.
Default judgement set aside subject to cost on ground that defendant shows he has a reasonable defence by affidavit in support and reasons why he failed to enter appearance in accordance with rules. O 10r8 set aside or varied as fit and no time limit for moving court to set same aside but within a reasonable time. Whenever fraud is alleged, a new writ is issued and only fraud can be plead in new writ, nothing else and particulars proved as fraud vitiates all proceedings and until properly adjudicated, judgement is nullity per Dzotepe v Hormenunu.
If detinue, judgement may be for delivery of goods or their value to be assessed and cost, delivery only and cost or value to be assessed only and cost.
If recovery immovable, judgement for possession and cost, but where many defendants, judgement must be against all if only one possession will not be enforced except in mortgage action.
If mixed claims, judgement may be given in respect of any of the claims as if that is the only claim. Per Conca Engineering v Moses where claim of plaintiff is of a description not mentioned in rules, then after filing affidavit of due service of writ and statement of claim proceed with action as if defendant has entered appearance, no default judgement can be taken in such circumstance.
Venue
O 3 only 1 HC, venue isn’t jurisdiction, if wrong venue court can hear until defence objects, Judge stay proceedings refer to CJ who transfers to appropriate venue, orders made before transfer aren’t nullified.
Immovable action in region where immovable is situate, restrained or seized movable in region seizure took place, against public officers for penalty or forfeiture in region where cause of action arose, specific performance in breach of contract in region where contract ought to be performed or where defendant resides not where breach took place, all cause not mentioned above, in region where defence resides, where two or more defendants any of the regions of residence.