NAZO Creations v Mahomed t/a Hasco Cash 'n' Carry (Civil Cause 552 of 1993) [1993] MWHCCiv 46 (15 November 1993)

\ I N THE HI GH COUR T OF MA LAW I PRI NCIPAL REGIS TRY CIVIL CAUSE NO. 552 OF 1993 BETWEEN : NAZCO CREATIONS PLAINTIFF - and - HASSAM HAJI MAHO MED t / a HASCO CASH "N" CARRY CORAM: MWA UNGU LU, RE GI ST RAR DEFENDANT Chi ligo, Coun s el fo r the Pl aintiff Go n akuli:3, Cou ns e l for t h e Defendant 0 R D E R On t he 28 th of Oc to ber, 19 93 I heard an appl i cati on by t h e the defendant , Hass am Haji t h at I made on the 24th of t o o k out t h e su mmons to set a side the ju dgmen t. The plai nti ff t o se t aside a n o rde r Augu st , 1 9 93 s etting as ide th e judgment entered by the plai nti f f, Na zc o Crea t io n s , a gains t Mahomed t/ a Has co Cas h "N" Carry. On the 28th of May , 1993 the defe ndan t summons was re t urnable o n the 24t h of August, 1993 . plai nti f f wa s s erved o n t h e 1 2 th o f Au g ust, 1993 . The plaintiff did not appe a r on the 24t h of Au g u st, 1 993. defe ndant a n d set asi de t h e plai nti f f. Th e plai ntiff t hen t oo k o ut the summon s tha t on t h e 28 t h o f Octob er, 1993 to set aside the order I made in his ~ bsenc e . 24th of August , 1993 . applic at i on t o set as i de t he judgment. I o rd e red th at I hear the defendant's t h at I made ex -part e on the judgme n t with costs to the I set a si de t h e ord e r I hea rd the I heard Th e Th e de fe n dant so u g h t to set as ide the judgme nt on two groun ds . Fi r s t, that t he judgme nt was irregular i n tha t i n default o f not ic e of in tention to defe nd was judgmen t obtaine d pre ma t urely and wi thou t t h e p l aintiff serving a state men t of cl aim o n t h e de fendant. The second g round was that the defe n d a n t h as a g o o d de f e nce to t h e plaintiff' s ac tion. set a side t he j udgme nt i n de faul t of notice of int enti on to defe nd no t o n grounds that the j udgment was irregu l ar b ut that the I 2/ .... - 2 - t h e d e fen d ant had gro unds on the merits. t h e judgment was irregular . conclu sio n. I did not thin k t h at I proceed to give reas ons f o r the Th i s cannot be correct. The defendant had up t o 27th The judgment here was not irregular. The plain tif f iss u e d a writ of summons on the 5th of May, 1993. The wri t was served by pos ting it on t he 6 th of May, 1993. Mr. Gonakul i n ji, appear ing for the defendant, rightly pointed out th at the writ was i ndee d se rved on the seventh day notw i thstandj_ng Orde r 3 ru le 2 o f t h e Rules of the Supreme Court. Conseque nt l y , the writ o f s ummo ns was d e emed served on the 14th of May, 19 93 . Mr. Go naku l i n ji contends that the defendant had up to 28 th May within wh ich to file notice of his intention to defen d action . May wi thi n whi ch t o s e rve his notice of intention t o defend. The writ requi res t h a t th e acknowledgment of service sta ting therei n wh ethe r you jntend to contest t he ac tionto be lo dged at the a p p ropri a t e Reg i s t ry within 14 day s in c lusive of the day of servic e . If t he wr it of summo~was served on t h _e defen dant on t h e 14 th of May, 1993, therefore/ the defendant had up t o the 27th o n wh i c h to l o d ge his notice of intention to d efend . The obtai ned o n t he 28th of Ma y. 1993. The judgment was not , therefo re , irre gul a r. Th e notice of intention to d efend curious ly was al s o received on the 28th of May, 199 3 . A Court will accept t ardy notice of intention to defend but only where a judgment in default of notice of intention to defe n d h as not been ente r ed. On the record, as it is, it must be th at the notice of i nte ntion to defend was actually received afte r judgme nt in de fault of notice of intention to defend had been entered by the defenc e . The judgment was, there for e , re gular. i n default of notice of intention to d efend was j udg me n t t he i f the p lain t iff includes a concise sta teme nt of Practically, there are three options a vailable to I t wa s a lso contended that the judgment was irregu lar b ecaus e t h e p laintiff did not serve the defendant with a state ment of c laim. The plaintiff has no duty in an act ion for a liqu idated c laim only to serve a statement of claim wh ere the defend ant h as not lodged a notice of intention to de fend . There is no oblig at i on to i nclude a statement of claim in a wr it. It will s uffic e t he nat ure of t h e claim made or the relief or remedy required i n the act ion. the pl aintif f . He can endorse his state ment of clai m on the writ. In whic h cas e it will be served together wi th the writ . He can issu e a writ without the endorsement of a stateme nt of claim provi de d there i s a concise st a tement of th e natur e of t h e cla im or r elief or remedy required and let th e state ment accomp any th e writ when the writ is being served . Alterna tivel y , and that is what happened in thi s c a se , plainti ff can issue a wri t endorse it with a concise sta tement of th e nature of the c laim made or the relief or remedy sought and se r v e it without a statement of clai m. plainti ff c a n serve a statement of claim shortly af ter s ervice If this h app ens the t he 3/ . .. . / - 3 - of t he wri t or wait until there is a notice of int entio n to defe nd in which case he must serve his statement o f claim 1 4 days after t he lodging of the notice of intention t o de fend. Where t h e pl aintiff has endorsed his writ such a c oncis e state me n t of the nature of the claim, relief or remedy sought and he h a s n ot en d orsed a statement of claim he can sti l l obtai n a judgment i n def a ult of notice of intention to de fend i f the defen dan t d o es not acknowledge service intimating he in te n ds to defen d. a not ice of intention to defend, th e plaintiff cou ld ob tai n judgment in default of notice of intention to defe nd notwi thstand ing t h at statement of claim had not be en se rved on him. Th e ju dgment would, therefore, not be irregu l ar o n tha t score . In this case, in so far as the defendant had n ot lodge d The ju dgment here is regular. It cannot be set a side If th e goods were rejected because the defe ndant was t o the plaintiff . Unfortunately, the a ffidavit does unles s there is a d e fence on the merit. The defen ce exh i bited in th e a f f i d avit i n support of the application rai ses t r i able issue s and, prim a facie, a defence to the plaintif f ' s a ction . The p laint i f f's a c tion was for the price of goods suppl ied a n d deliv ered . The defendant, while accepting the con t ract of sale, says that h e reje ct ed the goods, notified the plai ntiff of it, and, althou g h there was no obligation so to do, caused the g o ods to be sen t not g ive r e a sons why the goods were rejected . Thi s is impor tant. entit le d to, the plaintiff has no remedy against t h e de fendan t . It is t h e de fendant who has a remedy against the p l ainti ff. On the o ther h a nd, i f groun ds , th e plaintiff has a cause of action again st th e defen dant . One would have needed the affidavit to be more revea ling on this matter. This deficiency, howeve r, is not fatal , or a t least it is not as fatal. The fact t hat the defen dant ' s affid a vit do e s not show merit does not impl y that h i s a pp l ic a t ion t o set aside should be rejected ou trigh t . judgme nt c o u ld st i ll be set aside if there are exc eptional circumstan ce s or, at least, the Court could order a supple ment a r y af fi davit to clarify the issue (Kanc hunju lu v . Magareta (19 71-72)) 6 ALR (Mal.) 403). supple mentary affidavit on this aspect. what I am g o ing to say. the defendant rejected the good s on no I shouldn ' t be cause of I would have or dered a The The af f idavit jn support of the application to se t asjde the j udgment discloses that when the goods were re jecte d t h ey we re redeli v ered to the pl a intiff. c a nno t su e f or th e contrac t price. He that ha s b ee n oc c a sioned to him by r e jection o f th e goo ds . Short of th a t, he should have mitigated his loss b y the resale of the good s . He would then be entitled to the di ffere nce b e twe en th e c ontract pric e of the goods and the pr ice a t wh ich he so ld th e g ood s . Most c ertainly he would not b e enti tled to In this c a se the pl aintjff i s entitled to t he loss 4/ .... - 4 - the full co ntract price. Wh ere the amount that the defen dant i s l iab le to pay can only be pro ved b y evidence at trial, i t wo ul d be i mprop e r not to allow t h e defendant to have an oppo tun ity t o disp ute th e claims a gainst him. On that score, even f or t h e defi ciency i n the aff i davit that I referred to earlier, I wou l d set a s ide t h e judgme nt . MADE i n Chamb e rs t his 1 5 t h d a y of Novemb e r, 1 99 3 at Blan tyre . -------........... '--. ·, - ------ - \ --f--------✓ D. F . REGI STRAR OF TH E OF MALAWI