Enock v Lujeri Tea Estate Limited and Another (Civil Cause 519 of 2013) [2014] MWHC 508 (5 May 2014)

IN THE HIGH COURT OF MALAWI ZOMBA DISTRICT REGISTRY CIVIL CAUSE NO.519 OF 2013 Between: PATRICK ENOCK ........cccscecececcscccuccnsvencceneceaecesaseeaeetens PLAINTIFF And LUJERI TEA ESTATE LIMITED..........sceseccccccececacecocuscececeeees DEFENDANT NICO GENERAL INSURANCE COMPANY LIMITED.........c:.sceseeeeee 3°° PARTY Coram: Howard Pemba, Assistant Registrar Miss Atiji Phiri, of counsel for the Defendants Mr A. Nkhwazi, official Court interpreter RULING Brief facts This is an application by the 3 party under Order 13 rule 9 of the Rules of the supreme Court to set aside the default judgment entered herein by the Plaintiff against the defendant and setting aside the 34 party notice on the grounds that the 3 party a defence on the merits and that the 3 party notice was irregularly filed. The facts of this matter are not contentious. Suffice to say that the Plaintiff commenced this action against the Defendant by a specially endorsed writ of summons issued by this court on 10° October 2013, claiming damages for pain, suffering and loss of amenities of life, damages for disfigurement and costs of the action. The statement of claim reveals that these claims arise due to the defendant’s negligent conduct when, on or about the 15" August 2012, a piece of wood fell on the Plaintiff’s hand from the defendant’s tractor as he was loading the said vehicle whilst working with the

defendant. On 14°" November2013, the defendant served on Nico General Insurance Company Ltd a Third a party notice pursuant to Order 16 rule of the Rules of the Supreme Court. Later, the 3 party having failed to file an intention to defend the claims herein within the prescribed time, the default judgment herein was entered in favour of the Plaintiff wherein it was ordered and directed that the 3 party should pay the Plaintiff all damages claimed herein to be assessed by the court. The 3" party then, through counsel, later filed ex-parte summons for stay of the execution 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 3 party filed an affidavit sworn by Mr. Jones Dziwani, of counsel. From this affidavit in support, the Defendant’s argument is that they have a defence on merits, a copy of which they have exhibited to the affidavit, and hence the default judgment should be set aside so that they should be allowed to enter this defence to the Plaintiff’s claim herein. Further, the 3 party avers that the Third Party notice should also be set aside on the ground that it was issued irregularly as the defendant did not first obtain leave before issuing it. Neither the defendant nor the Plaintiff filed any document in opposition. During the hearing of the application, they

were both not available. Thus, the only evidence available before me is that from the 3™ party and | proceed accordingly. This court would like to thank counsel for the 3 party for the submission and arguments advanced herein in support of their application. | have given these submissions and the arguments herein the most anxious consideration. Issue This court is called upon to determine on the following issues: 1. Whether or not the default judgment referred to herein should be set aside on the ground that the 3 Party has a defence on merits.

2. Whether or not the 3™ party notice should be set aside on the ground that it was irregularly obtained. Law and anatysis 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 cardinal 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 is not unnecessarily fettered and which must be exercised judiciously. In the present case, there is an application to that effect by the 3™ party on the ground that they have a defence on merits. Neither the Defendant nor the Plaintiff has objected to it On whether the default judgment should be set aside, 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: “1 have had a chance to look at the decision of the court of appeal in Alphine Buik 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 3"

defendant having failed to acknowledge service of the third party notice 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 Worid Banking (supra). Thus, the simple task of this court will be to look at the statement of draft defence which has been exhibited to the affidavit and is marked CT1 and see whether it is one that a reasonable tribunal would consider it meritorious, On this issue, | have had the opportunity to look at the 3% party’s affidavit in support of the present application to which the statement of facts showing their defence has been outlined. In the affidavit, counsel for the 3 party has said that the reason they failed to acknowledge the third party notice and file their defence was that they were instructed in late December 2013 and after they came from the Christmas break, on 6" January 2014, they attempted to acknowledge service of the

Third Party with the intention that the 3’? Party should contest the proceedings herein. However, this was rendered futile as it was learnt that the Plaintiff had already caused a default judgment to be entered. However, they say that they dispute the Plaintiff’s claim and have a good defence on merits. It must be recalled that on an application like the present one, indeed 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 Vanot v Awford (1986) 83 LS GAZ. 1725; (1986) the times, April 23 CA). | have had the opportunity to go through the exhibited defence which is marked CT1 and, having so done, | wish to concur with the 3% party’s counsel that they have a defence on merits. In paragraphs 2 and 4 of the said defence, the 3" party denies not only that the Plaintiff sustained the injuries as a result of the defendant servant’s negligence as alleged in paragraph 5 of the statement of claim but also that they will plead contributory negligence. These, in my view, are indeed triable issues and it is up to the Plaintiff to prove on the balance of probabilities that the accident was caused by or could be attributed to the negligence of the Defendant. To me, the 3 party 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 3" party in reliance and based on the fact that the defendant negligently caused the accident. On whether the Third Party notice was issued irregularly, the court has checked its own records and I have indeed noted that the Defendant did not first obtain leave before issuing the said Third Party Notice. This, to me is indeed irregular as it is in contravention to Order 16 rule 1(2) of the Rules of the Supreme Court which clearly provides that a defendant to an action may not issue a third party notice without leave of the court unless the action was begun by writ and he issues the notice before serving his defence on the plaintiff. Evidence before me proves nothing falling within the exceptions to the said rule. 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 3 Party to file their defence. The 3" Party’s application herein is therefore allowed and the default judgment is hereby set aside based on the ground that the 3 party has a defence on merits. On the issue of costs, | am very mindful that these are in the discretion of the court. Considering that the default judgment was obtained regularly, | proceed to exercise my discretion in favour of Plaintiff and | award him costs of the proceedings. / | yf i j L fr i Howard Pemba ASSISTANT REGISTRAR DELIVERED 7 this 5" day of May 2014 at Zomba. AL