The law as it relates to the filing of a defence in a petty civil matter is pursuant to: Section 10 of the Petty Civil

Rules made under Section 53 Petty Civil Courts Act Chap: 4:21 10. (1) Unless a defendant upon a Default Summons, within ten clear days after service of such summons, on an application supported by an affidavit of facts or by notice in writing setting up that there is irregularity or any other good defence in law, satisfies the Judge that there is some real question to be tried or some defect in the proceedings, the plaintiff shall be entitled to enter up judgment in terms of his claim.

The law is clear, a defendant has 10 clear days from the date of service by which to file the affidavit or notice to obtain leave to defend within the time limited for so doing.

Ramnarine Seenath v. Seenath & Another CA Civ No. 22 of 1965. On the facts of this case, the plaintiffs brought an action claiming to recover possession from the defendant of two rooms in a building standing on a parcel of land the ownership of which was vested in the plaintiffs. The defendant failed to deliver his defence within the time allowed by the rules for that purpose and he sought from the attorneys for the plaintiff, an extension of time in which to deliver the defence. He was allowed to file his defence in the matter by the end of January 1965. This day came and went and no defence was filed. Instead another extension of time was sought this time until the end of February 1965. This application was refused on the 1st February 1965 and so the defence became immediately deliverable. It was not delivered and on the 2nd February 1965, default judgment was entered against the defendant in the matter and so an order for the recovery of the two rooms in the building was obtained. The default judgment was set aside by the Court

of Appeal which was presided over by Sir Hugh Wooding CJ. This is what His Lordship had to say at page 2 on the matter: A point has been taken about delay. I wish to say in that respect that while we are most anxious to ensure that the rules are observed and that avoidable delays are avoided, and while it is normally not a good reason to say that counsel has been busy and has therefore been unable to give his attention to the matter, nevertheless when the courts are dealing with a default judgment they cannot disregard any such disability if put forward by way of explanation for the default which permitted the judgment to be taken up. And so long as the explanation is a reasonable one, the courts should not deprive a defendant of the opportunity of having the claim against him adjudicated upon so that judgment may be pronounced on the merits.

Further as Lord Atkin stated in Evans v. Bartlam (1937) 2 All ER at pg. 650: The principle obviously is that, unless and until the court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has been obtained only by a failure to follow any of the rules of procedure. A defendant should not be denied the opportunity to defend a claim against him following the words of the Honourable Justice Nalini Singh in Paula Samlal v. Viro Chem Janitorial Services Company Limited: One cannot ignore the fact that the interests of justice in general dictate that litigation between parties should be decided on the merits of the case and not upon technicalities. The defendant in the instant case has a real defence that is worthy of being entertained and considered by the court and In my respectful opinion, following the dicta of Justice Singh Paula

Samlal v. Viro Chem Janitorial Services Company Limited (supra) , in the interest of justice the defendant should be allowed to defend the claim brought against him, as the defendant has a triable case. Further, on an interpretation of the CPR 1998 the judicial committee of the Privy Council in The Attorney General v Keron Matthews [2011] UKPC 38 stated at para 16 There is no rule which states that, if the defendant fails to file a defence within the period specified by the CPR, no defence may be filed unless the court permits. The rules do, however, make provision for what the parties may do if the defendant fails to file a defence with the prescribed period: rule 10.3(5) provides that the defendant may apply for an extension of time; and rule 12.4 provides that, if the period for filing a defence has expired and a defence has not been served, the court must enter judgment if requested to do so by the claimant. It is straining language to say that a sanction is imposed by the rules in such circumstances. At most, it can be said that, if the defendant fails to file a defence within the prescribed period and does not apply for an extension of time, he is at risk of a request by the claimant that judgment in default should be entered in his favour. That is not a sanction imposed by the rules