Phoya v Finance Bank of Malawi (Civil Cause 568 of 2000) [2003] MWHC 118 (31 October 2003)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 568 of 2000 BETWEEN: B. D. PHOYA ...ttt PLAINTIFF FINANCE BANK OF MALAWI ..........ccccuuun... DEFENDANT - and - CORAM: POTANI, REGISTRAR Phoya, Counsel for the Plaintiff Chagwamngira, Official Interpreter RULING This is an application by the defendant to set aside a default judgment obtained by the plaintiff. The plaintiff commenced this action seeking a permanent injunction order restraining the defendant from selling the plaintiff's house on Plot Number NW 110/119/11 Ndirande in the City of Blantyre on the ground that the defendant has no power to do so. Subsequently, pursuant to Order 19 rule 7 of Rules of the Supreme Court, the plaintiff applied for judgment to be entered on his claim as the defendant was in default of service of defence. The court readily granted the plaintiff's application and judgment was accordingly entered. The present application by the defendant is supported by the affidavit of counsel for the defendant, Dick Chagwamnjira and also a supplementary one sworn by Peter Deputy Managing the defendant. Director White, for an application to Order 19 rule 9 of the Rules of the Supreme Court empowers the court to set aside or vary any judgment entered in default of service of defence as the one herein. The principles that guide the court in considering whether or not such a judgment should be set aside are the same set aside a as those applicable in judgment entered in default of the giving of notice of intention to defend as set out in Order 13 rule 9 of Rules of the Supreme Court. It is admitted by the defendant that The law is the judgment herein was regularly obtained. the if that such defendant demonstrates, by affidavit evidence, that there is a defence on the merits to the plaintiff's claim and Farden v. Richter (1889) 23 QBD 124 is the case in point. a judgment can set aside only be The defendant’s proposed defence, as contained in exhibit ‘HDC1’ to the affidavit of Dick Chagwamnijira is essentially that it was entitled to sell the plaintiff's house because the plaintiff duly signed a legal charge in respect of the house but the charge could not be registered as the plaintiff lease certificate and only gave the defendant lease documents as security documents. fraudulently wrongfully kept and the T I R H Y H A the selling restraining defendant from The judgment the plaintiff obtained is for a permanent injunction the plaintiff's house on the ground that the defendant had no power to do so as there was no charge registered in respect of the house. Counsel for the defendant argued that an injunction being an equitable remedy, it must be governed by equitable principles one of which being that a person seeking an equitable relief must come to court with clean of Blakemore Glamorganshire Canal Navigations (1832) 1 MY and K 154 at 168. Counsel then went on to submit that the plaintiff's hands in this case are not clean in that he signed a legal charge for him to get a loan facility but wrongfully and fraudulently withheld the land certificate in order to hands and case cited the he It by not the the claim. plaintiff's injunction plaintiff secured registered because of is prevent the defendant from registering the charge. by the defendant that the my view that the assertion plaintiff's charge was conduct, if prove at the trial, would likely be a successful | have such a view defence to rightly observed by counsel for the because indeed as the the defendant, the judgment herein is an equitable remedy which can only be available if the person seeking such remedy comes to court with clean hands which would not be the case with the plaintiff if the allegations by the defendant were to be be proved during observed that it is also stated in the defendant’s exhibited the defence that defendant commenced a separate court action against the plaintiff being Civil Cause number 2181 of 1999 in which an order was made by the court for the sale of the house. One would then wonder why the plaintiff did not come forward to challenge the defendant’s claim in that case which obviously included a claim for an order for the sell of Again it was open to the plaintiff to apply to the house. have the order of the court to be set aside on the same injunction grounds that were advanced to herein. Going further, plaintiffs has to house, selling before obtain trial. the the the it In as earlier, conclusion, already observed the defendant has demonstrated that it has a defence on the | consequently order that the merits to the plaintiff's claim. default judgment herein be set aside and that service of as defence was served defence together with the affidavit in support of this application. has been set aside having been The judgment that regularly entered, costs of this application shall be borne by the defendant. dispensed with be MADE in Cham Blantyre. rs this day of October 31, 2003, at [ EGISTRAR