Chillington Agrimal Mw Ltd v Nthunzi (Civil Cause 1126 of 1994) [1995] MWHCCiv 11 (29 March 1995)

IN THE HIGH COURT OF MAIJ\WI PRINCIPAL REGISTRY CIV. CAUSE NO. 1126 OF 1994 BETWEEN: CHILLINGTON AGRIMAL (MALAWI) LTD . . . . . • . . . . . . . . . . . . . . . . . P LAIN T I F F and ODFRE.l E. J. NTHUNZI DEFENDA NT R R ttZIKl\111\NDA, DEPUTY REGISTRAR Hr . Banda, Counsel for th"?. Plaintiff s Hr. Hsiska , Counsel for the Defendan t RULING Th i s is !Ir. llsiska's application to hnve default judg ment herein set aside. The application is made pur suant to Or der 13, Rule 9 and Order 19, Rule 9 . His app lication i s the a p plication and filed an affidavit in oppositio n, which i s very s trange inde ~ J . supported by affidavit. Hr. Banda oppo ses ' tfr . Hsiska argues that if a judgment has been ent ered for fa il ure to foll o w rules of procedure and that th e other s i de applies to have it set aside then it ought t o be set a s ide so that the matter is defended . What is required is an affidavit disclosing defence on the merit s. He c i ted to supp ort his The affidavit must show a triable is sue and· a r gument. th e Court may ignore laps~ of timf:'. He argued that his p ro fessed defence discloses triable issues. c a se authorities number of a r:lisr:losing no llr. Banda on the other hand c ontends that the j u ,~·_;iment sh o uld remain as the defence is mere sham witho ut merit t hat thP. ;:rn c1 cl e f enc e He c i t e d a num b e r o f in st rtnces he regarded as contradictory in .the d efence . He s aid that the defence does not have support from the 11 ei ght. o f s e 1 f - cont r a ell ct o r y . t Ii A. e vi cl e 11 c e . He says tri.rlble tssues. i s c1 r g1.1e s that there there !t r . Banda b ei n g pools of Hater in the house saying "thi s wa.s a t 1?c hnicc1l problem beyoncl out r.:ontrol". Yet t he defence d ,3 n i 0 s th a t 1. lv~ re 1: e r e po 0 l s II e re no t correc ted, n o imm~diate repairs. Mr. Ban<l~ was em phatic is c111 admission o f fJ f w a t e r . P rob 1 e m s I 1-iJG;~~-;,J · -· llf::1R Jl Py - - that through and through the defendant confessed the br8aches and cnnfenned that it took time to remedy them. to ~ h e i II opp o s i t i on judgment herein. I must say here that i t was wrong of llr. Banda to file an a f f i cb v i t a pp 1 i ca t i on to s e t As was observed by Hr. Hsiska aside that tnntr1mounts to determining issui:>s here on counsel's In Malawi Book affidavits and this ·,• 1)1.1lcl be improper. Service Vs. Blantyre Chalkmakers Ltd., Civil Cause No. 1374 of 1994 (unreported) Chimasula, Acting Judge was confronted with a At P.4 of the judgment he said: simili'l.r situation. ls law "I want to say that to an appllcation to set aside a judgment in default, it is impermissible to file an opposing affidavit. That would in my view be trying the matter purely on nffidavits without the opportunities of discovery and cross-examination. The that the defendant's afflc1avi t must raise a triable issue or a defence on the merits. be Only considered . . . . . . . . . . . It must further be noted that if there are good and sufficient reasons, a judgment woul<l be set aside even if the affidavit the application does not disclose in s11pport of: merit". the defendant's affidavit ought to That being the position at law I will not consider the affidavit in opposition herein in deterr"ining whether the judgment in defc1ult on file should be set aside. I will only consider the affidavit of Hr. Hsiska. There is no judgment herein was regularly doubt that the default the irregulary obtained obtained. defendant would have been entitled ex debito justitiae to have it set aside. the present case what is In required on the part of the defendant is to profess a the affidavit a defence on triabl~ issue. If i t had been the merit or to raise in \ .... The writ of summons was specially endorsed and as such it contains a statement of clajm. Paragraph 3 states the the defendant covenated that he would keep that exterior of the demised premises in good and tenantable repair and condition and paragraph 4 states that in bre.'\ch of the sald covenant, the defendant did not keep o f and the tenantable repair and condition: ll em is e d pre mi s e s e x t e r i o r in good the (a) The roof was leaking when i t was raining; ( b ) \'I ,7 t. e i: w a s i 11 le r 1 cJ r u f [, e e p i n g th rough th e f 1 o o r i n Lo t he th~ I Io use ; 3/ .. . . . - - (c) The defendant's servants and or agents made a big hole through the exterior wall which was left unsealed for a long time in consequence whereof rats infested the house. thei;-eof. in the roof Has tJme periorl and the Defendant denies In the professed defence the defendant denies that he ever hrear::herl a covenant in the lec1se between the parties and avers that he has ever kept the exterior of the demises in good and tenantahlr 1 epair and condition, that the lf:'akc1ge immediately repaired soon after being notified of it and denies that there was ever water seeping through the floor into the interior of the The house and shall demand strlC't proof Defendant agrees that his contractors left a hole on the exterior of the wall but that the same was only for a immediately sealed off short iL was the house was thereafter; h13.avi.ly lnfest.ed H.it.h rat.sand that the same went inside because of this hole an,1 ::1vers that the sai.d rats wer '' attracted by the foodstuffs brought into the house by the plaintiff and i.t was the pla.intiff's duty to get rid of them hy rat poison or other similar chemicals; the defendant den1~~ that there were pools of water in the house wh0never it rained. In my view these and other paragr;:iphs in tl1e professed defence do not amount to a bare denial. They raise triable issues. Going through the def~ndant's affidavit and professed defence I do not The contradictions which Hr. see any contradic tions. Banda appears to rely on are said to be apparent in the I have already . exhibits to the affidavit in opposition. said I will not consider the affirlavit ~in opposition. Nor will I consider the exhibits to it. After all the said exhibits are photocopies. that All in all I find that there is a defence on the merits The issues. and that the default to enable The defendant to serve his de fence on the plaintiff. default judgment is set aside and the i~ tn the affidavit raises triable judgment must be set aside ,11"fPn,1;,,nt u~,..1 .... Blantyre. ◄., Cha!Ylb~r.,. this 29th day of Barch 1995, at DEPUTY COURT