Mkandawire v Malawi Congress Party (Civil Cause 51 of 1993) [1994] MWHCCiv 40 (29 April 1994)

IN THE HIGH COURT OF MALAWI LiLONGWE DISTRICT REGISTRY CIVIL CAUSE NUMBER 51 OF 1993 BETWEEN. CAYWOOD TWALEMA MKANDAWIRE.... 0.646006 ecenes PLAINTEF AND MALAWI CONGRESS PARTY .........- ade Sep eS DEFENDANT CORAM: JANE MAYGMU ANSAH (MRS) DEPUTY REGISTRAR Mvalo of counsel for tha Plaintiff Kaliwo of Counsel for the Defendant 4 RULING This is an application to set aside an interlocutory defau.t judgement, which was followed by assessment of damages. The application is duly supperted by an afiidavit. The plaintiff strongly opposes the application, although there is no affidavit in opposition. The facts of the cuse@ are these. The plaintiff, a commetcial farmer, brought the present action against the defendants, claiming damages for loss suffered as a result of unprovoked malicious distruction of his thirteen tobacco sheds and thirteen houses for his tenants on 24th February, 1993, the plaintiff files an especially indorsed writ of summons. This summon was served by post on the defendants. No notice of intention to defend was filed, conseavenily the plaintiff on 15th April, 1993 obtained an interlocutory default judgement against the defendants. Damages were assessed later. A notice of appointment to assess damages was issued, returnable on 12th November, 1993. On that date, damages were assessed in the absence of the defendants and their laywers. The applicetion is two fold. It is mede under Order 35, Rule 2(1:, order 13 Rule 9 and order 32 rule 5. The first application is to set aside the de*tault judgement and the proceedings. ta the same ~ 2D - application there is a second application, for the extension of time. The court has power in the rules to deal with such aprlications. However the application was not made within the prescribed seven days. I find this tc be a small irregularity in that interlocutory ex parte orders can be challenged anytime, if new facts come up, to allow the party who defaults for good reasons to be heard to avoid injustice. Lush J in the case of Bradshaw and another vs Bird 1920 KB..143 "it cannot, I think, have been intended that the period of six days appointed by the rule should in every case be treated as a fixed period incapable of extension, in as much as alitigant might be absolutely ‘prevented by illness or an accident, or other circumstances, from making the application at a later date." The detencants became aware of the order of the court the time they were visited by the sheriff. Mr Kaliwo, Counsel for the defendant submitted that, the default judgement and the assessment of damages were made in his anpsence due to circumstances beyond his control. The Attorney General was on record as representing the defendants. Following constitutional amencment, the Attorney General ceased to act for the defendants and Messrs Kaliwo and company were engaged by the defendants. Messrs Kaliwo and company wrote to all legal houses in Malawi, formally informing them that they were the lawyers for the defendants. Such letter was sent to Messrs Mvalo and Company who immediately sent a reply to Messrs Kaliwo and Company informing them all the cases their clients had against the defendants. One of the cases was the cases at hand. Mr Kaliwo wrote back to Messrs Mvalo and Company, requesting them to supply him with copies of the writ of summons, statement of claim, and the default interlocutory judgement. It is Mr Kaliwo’s submission that he further contacted the Attorney General and requested for the defendants file. Although the Attorney General promised to send the writ of summons, statement of claim and the interlocutory judgement, these documents were never sent. While Mr Kaliwo was still waiting to hear from Messrs Mvalo:-and Company, the court and the Attorney General. he was shocked to learn from his clients that they hac been visited by the sheriff. Mr Kaliwo contended that his application be granted because, not to do se will result in injustice and his clients wiil suffer unfairly. he further contends that his client has a defence on merit. On the other hand, Mr Mvalo contended that a nae” whereas. it ig true that there was such correspondence between himself ind Messrs Kaliwo and Company, the defence laywer did not put himself on record. That resulted in all notices of appointment for aepesement of damages being sant to the Attorney General’ chambers. He further contended that he was a obliged to send notices to Kaliwo and Company. He further submitted that the defendants application is net om merit. U. An eamenieesl il by a lawyer to file a notice of change ot.legal practitioner is an irregularity. However such Jereauieeiny can be waived. The learned Judge in the case of Mason vs Grigg [1909] 2 KB 34% said: "if a notice of appointment is not given, and the opposite party does not know of the appointment, the new soilicitor can recover no costs since the opposite party will have dealt. with the matter on the footing that they could not be liable except for out of pocket expenses, but if they knew of the appointment. the new solicitor can recover hi costs.” In this case, the plaintitf’s lawyer was aware of the change of legal practitioners. Having promptly responded toa the defence lawyer’s first letter, indeed, the defence lawyer expected a continuation of such a commendable and honourable of behaviour. In the circumstances therefore the plaintif’s counsel was expected to supply the information requested by the defence counsel and te infercm him of the date for the assessment of damages. Bearing in mind that the lawyers are human beings iike any man. Therefore they cannot conduct their business without Sometimes making slips. Where a lawyer writes to a fellow lawyer and waits for a reply, shouid be pardoned. Especially where the lawyer who should have given the necessary information goes behind the back and obtains experte order. The defendant’s application succeeds. The defendant should serve his defence on the piaintiff within seven days from today’s date and that the sum of *70,000 should be paid into court. As the: defendant was in default, he must pay the costs of the Eee Kade in -Chawbers-this. oy |. day of April 1994 Cc - 5) ; i‘ $ f- Corn Sek Jens Mayemu Ansah (#Fs;- DEPUTY REGTSTRAR OF THE HIGH COURT