Chirombo v Attorney General (481 of 2012) [2014] MWHC 496 (28 April 2014)

IN THE HIGH COURT OF MALAWI ZOMBA DISTRICT REGISTRY CIVIL CAUSE NO,.481 OF 2012 Between: MORGAN M. CHIROMBO AND HAILE CHIROMBO t/a MUBYI] TRADING....... PLAINTIFF And THE ATTORNEY GENERAL(CHIEF COMMISSIONER OF PRISONS).............. DEFENDANT Coram: Howard Pemba, Assistant Registrar Mr. Mwaungulu, of counsel for the Plaintiff Mr Gondwe and Mr. Chapuwala, of counsel for the Defendant Mr Tepeka, official Court Interpreter RULING Brief facts This is an application by the Defendant under Order 13 rule 9 of the Rules of the Supreme Court to set aside the default judgment entered herein on the ground that the Defendant has a good defence on the merits to the Plaintiff’s claims. The facts of this matter are uncontroverted. Suffice to say that the Plaintiff commenced this action against the Defendants by a specially endorsed writ of summons issued by this court on 16™ January 2013, claiming damages for breach of contract, damages for breach of right to economic activity, compound interest on loss of profits and costs of the action. The Defendant having failed to file an intention to defend the claims herein, the said default judgment was entered in favour of the Plaintiff on the 5° February 2013 wherein it was adjudged that the Defendant does pay the Plaintiff all damages claimed herein. The matter then came for assessment of the said damages on 24" September 2013. While the matter was pending an order on assessment of damages, the Defendant later filed ex-parte summons for stay of the execution of the order of the default judgment which was granted pending the present application to set aside the said default judgment. Evidence In support of this application, the Defendant filed skeletal arguments and an affidavit sworn by Mr. Bazilial Chapuwala, of counsel. In both of these documents, the essence of the Defendant’s argument is that they have a defence on merits and hence the default judgment should be set aside so that they should be allowed to enter a defence to the claim herein. The Plaintiff, through legal counsel, also filed skeletal arguments in opposition and is opposed to the application on two grounds. First, they say that there has been a delay in prosecuting the summons and there has been no reason to explain the delay. Counsel for the Plaintiff avers that the said delay has subsequently resulted in prejudice suffered by the Plaintiff by way of costs. Secondly, the Plaintiff says that the Defendant’s summons is ill-conceived because the assessment proceedings were not stayed. To them, hearing of the assessment was already made and they were just waiting for the ruling. They say that restoration of the summons would have been made before the assessment was done and as it is, the same is nugatory. They therefore pray that the Defendant’s application be dismissed with costs. This court would like to thank both parties for the submissions filed herein in support of their arguments. | have given these submissions and the cases that counsels have cited the most anxious consideration. Issue Having heard both parties, this court is called upon to determine whether or not the default judgment referred to herein should be set aside on the ground that the Defendant has a defence on merits. Law and analysis The law regulating issues relating to default judgment is provided under Order 13 Rule 9 and also Order 19 Rule 9 of Rules of the Supreme Court. The essence of these relevant provisions is to the effect that the Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of these orders. Order 13 talks about judgment being entered against the defendant for failure to give notice of intention to defend while Order 19 talks about judgment being entered against the defendant due to default by the defendant in serving defence to a claim. | have thoroughly considered this applicable law whose ambit was considered by the Court in numerous decided cases. The general rule is that unless and until the court has pronounced a judgment upon the merits or by consent, it may have the power to revoke the expression of its coercive power where that has only been obtained by a failure to comply with any of the rules of procedure. See Evans v Bartlam {£193})AC 480, Grimshaw v Dunbar {1953} 1 QB 408 and Hayman v Rowlands {1957} 1 ALLER 321. From the above cited authorities, it can conclusively be stated that this court has the power to set aside judgment entered in default of failure to comply with rules of Practice which is inclusive of failure to enter an appearance despite any reasons for the delay or failure to file defence. However, it must be stated that this is discretionary power which must be exercised judiciously. In the present case, there is an application to that effect by the Defendant on the ground that they have a defence on merits. The Plaintiff has objected to it on the grounds that there is a delay in prosecuting the summons and that the application is ill-conceived as the assessment proceedings were already done and remain unstayed. It should be noted from the above cited authorities that whether a regular default judgment should be set aside or not is in the discretion of the court. The defendant does not have this as of right. In the case of Santagostino vs Attorney General (1997)1MLR 73, Mwaungulu J stated as follows: “! have had a chance to look at the decision of the court of appeal in Alphine Bulk Transport Co, Inc vs Soudi Eagle Shipping Co. Inc(1986)Lloyds Rep211@223. There is also a decision of the Supreme Court in Makaniankhondo Building Contractors vs Hardware and General Dealers MSCA Civil appeal No. 38 of 1984(unreported). What comes out from these decisions is that the power to set aside a judgment obtained for failure to comply with rules of court is discretionary.” Reverting to the present case, the issue of whether the judgment was regularly entered or not is not in dispute. This was the judgment that was entered regularly, the Defendant having failed to acknowledge writ of summons and subsequently enter defence within the prescribed time. Be that as it may, it has been repeated now and again that for a regular judgment to be set aside, it is an established principle that the Defendant must, in his affidavit, state facts which show a defence on merits, or an arguable or triable issue. For the defence to suffice as defence on merits for the purposes of setting aside a regular judgment, it has to carry with it real prospects of success otherwise it fails as a defence on merits. See Thindwa vs Attorney General (1997)2MLR 45@47 and also Mangoche vs Women’s World Banking(supra). Thus, the simple task of this court would be to look at the statement of defence and see whether it is one that a reasonable tribunal would consider it meritorious. However, before this is dealt with, it is prudent that we should first determine whether the summons herein is ill-conceived bearing in mind that the assessment proceedings have already been heard. Counsel for the Plaintiff has said that Defendant’s summons is ill-conceived because the assessment proceedings were not stayed and the restoration of the summons is nugatory. With due respect to the learned counsel, | would like to differ with him in this line of thinking. There was nothing that could prevent the Defendant from bringing the summons herein after the execution of the default judgment was stayed. To me, the stay of assessment proceedings can be regarded as being implied by the stay of execution of default judgment. Stay of execution of the default judgment implies stay of all further proceedings that come due to default judgment. Nonetheless, even if my reasoning is deficient and it is conceded that there was altogether need for a separate stay of the assessment proceedings, there is nothing to preclude the Defendant from making.such an application separately at a later stage. On the assertion that the restoration of the summons would have been made before the assessment was done and as it is, the same is nugatory, | wish to point out that | know no law that precludes making summons for stay of execution of default judgment after the assessment has already been heard. Above all, restoration of the summons herein had nothing to do with the assessment proceedings. This was a restoration of summons to set aside default judgment after the same was dismissed for want of prosecution, the application of which was heard in the absence of the Defendant. To me, there was nothing wrong in restoration of the summons herein and subsequent prosecuting of the said summons even after the assessment proceedings were already heard. Therefore, the Plaintiff’s argument that the summons herein is ill-conceived fails and is dismissed. On whether the Defendant has a defence on merits, | have had an opportunity to look at the Defendant’s affidavit in support of the present application to which the statement of facts showing their defence has been outlined. Having so done, | wish to concur with the Defendant’s counsels that they have a defence on merits. The Defendant denies not only the alleged breach of contract, the subject matter of which formed the basis for default judgment, but also the existence of the contract itself on the basis that the Defendant made a standing offer and there was no acceptance by the Plaintiff in the legal sense. These, in my view, are indeed triable issues and it is up to the Plaintiff to prove on the balance of probabilities that there indeed existed a valid contract and the same was breached by the Defendant. To me, the Defendant has proffered a defence on merits when only the allegations in it are considered; especially with regard to the fact that the default judgment was entered against the Defendant in reliance and based on the fact that the Defendant was in breach of the alleged contract. On whether there is inordinate delay, this court has observed that a period of two years has elapsed from the time the default judgment was entered up to the present summons to set aside the said default judgment. This, in certain circumstances, may be inordinate delay and | agree with the Plaintiff. However, considering the circumstances of the present case, such a delay could not be regarded as inordinate since there were some proceedings taking place in between. It must be recalled that after default judgment was entered, the notice of the present summons was filed and a date was obtained. The hearing, however failed for no fault of either party but because the court was busy with other duties. When another date was secured, the matter did not either take place and parties consented to an adjournment. After this second adjournment, it is stated by the Defendant that they failed to obtain a new date and this is what triggered the Plaintiff to make an application to dismiss the summons for want of prosecution. The Defendant then made a new application altogether for restoration of the summons. It is after the restoration order was granted to them that the Defendant then filed the notice of the present summons. From this, it can conclusively be stated that all these processes had their share in the time wasted before the present application was made and they therefore might have contributed to the said delay. Nevertheless, even if this is regarded as inordinate and thereby a prejudice to the Plaintiff, the same can be cured and/or cushioned by awarding costs to the Plaintiffs as counsel for the Plaintiff has already prayed for it. All in all, it must be recalled that on an application like the present one, the major consideration is whether the Defendant has disclosed a defence on merits; and this transcends any reasons given by him for the delay in making the application even if the explanation given by him is false (see also Vanot v Awford (1986) 83 LS GAZ. 1725; (1986) the times, April 23 CA). In view of the foregoing analysis, it is my ruling that this is the proper matter in which the default judgment herein ought to be set aside so as to allow the Defendants to file their defence. The Defendant’s application herein is therefore allowed and the default judgment is hereby set aside based on the ground that the Defendants have a defence on merits. The Defendants should file their defence within seven days from today and thereafter the matter can proceed for mediation or trial. Costs are awarded to the Plaintiffs as prayed. DELIVERED in chambers this 28" day of April 2014 at Zomba. Howard Pemba ASSISTANT REGISTRAR