Machemba & Anor. v Bwanali (Civil Cause 146 of 2016) [2018] MWHC 936 (13 July 2018)

Machemba & Anor. v Bwanali (Civil Cause 146 of 2016) [2018] MWHC 936 (13 July 2018)

The default judgment was set aside because declaratory orders should not be granted in default judgment, even though the Defendant failed to specify irregularity or show a defence on the merits. The Assistant Registrar did not err in setting aside the judgment, but the correct reason is that declarations cannot be made in default.

Citation
[2018] MWHC 936
Parties
1st Plaintiff: Fredson A. Machemba; 2nd Plaintiff: Lawrence Bwanali; Defendant: Filipo A. Unyolo
Court
High Court of Malawi
Jurisdiction
Malawi
Judgment Date
13 July 2018
Case Number
Civil Cause 146 of 2016
Procedural Posture
Civil Appeal / Ruling on Appeal From Assistant Registrar's Decision to Set Aside Default Judgment
Outcome
Appeal dismissed; default judgment set aside on different grounds than those relied on by the Registrar.
Legal Topics
Default Judgment, Service of Process, Declaratory Orders, Setting Aside Judgment
Source Language
English
Civil Procedure Default Judgment Service of Process Declaratory Orders Setting Aside Judgment

Case Brief

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Parties

Fredson A. Machemba

1st Plaintiff

Lawrence Bwanali

2nd Plaintiff

Filipo A. Unyolo

Defendant

Procedural Posture

Civil Appeal / Ruling on Appeal From Assistant Registrar's Decision to Set Aside Default Judgment

Legal Issues

  1. 1 Whether the Assistant Registrar erred in setting aside the default judgment obtained by the Plaintiffs
  2. 2 Whether service of the Writ of Summons was regular
  3. 3 Whether the Defendant disclosed a defence on the merits

Ratio Decidendi

The default judgment was set aside because declaratory orders should not be granted in default judgment, even though the Defendant failed to specify irregularity or show a defence on the merits. The Assistant Registrar did not err in setting aside the judgment, but the correct reason is that declarations cannot be made in default.

Court Disposition

Appeal dismissed; default judgment set aside on different grounds than those relied on by the Registrar.

Orders

  • Default judgment entered on 18th November 2016 is set aside.
  • Each party to bear its own costs of the appeal.