J.L. Mamtora Brothers v Osman (Civil Cause 1852 of 1994) [1995] MWHCCiv 15 (1 December 1995)

IN 'IBIS lIIGII CDURT OF' :t1ALA PI~INCIPAL l~. EGISIRY CIVIL CAUSE Nill1l3EI-< 1852 OF 1994 BETWEEN: J. L. :tWfTDRA BIDIHEP5 . . . . . . . . . . . . . . . . . PLAINTIFF and HAIDON G. OS1'1AN . . . . . . . . . . . , . . . . , . , , , . . DEFENDANT CDRAH: W. W. OJ"ill, DEPUTY pJJ_;·ISTRAR Ng 1 ombe , Counsel for the Plaintiff l1anyrn1gwa., Counsel for the Defendant OIIDER This is an applicatton by the defendant for an order set ting aside the default judgment herein which the plaintiff obtaint:rl on 24th October , 1994. The :tackground to the application is that by a writ of summons and a sta tem.ent of claim j_ssuErl on 22nd the plaintiffs claimed against the September, 1994 , def end.ant LC/ 39 along Livingstone Avenue, Limbe, in the City of Blantyre. They further claimed damages or mesne profits from 1st July 1994 up to the date of deli very. repossession of plot No. The plaintiffs averrt:rl tbat they were at all material times owners of the said plot and were entitled to 11-)e defendant .. the, said) was tenant possession of it. until 30th lJw1-e, 1994. A notice to quit had been duly issued and served on him on 31st 11a.rch, 1994, and he . I ·' " , :r ~ -~ - - - - - - - , - - - - - - - ----····· -- ---···-- ·- - - -- - - - - - -- - - ' .... . •.;, ... ~"'~""':'• ... '"'•"'· . ' [ ·,' '{i was required to vac,ate the scn.d plot by 30th June, 1994, refused or Tb.e plaintiffs further aver neqlectal I or ignored to accede to the notice and he bas wrongfully remainecl on the plot as a trespasser. tha.t he The plaintiffs also averred tbat they bave thereby been deprived of the use and enjoyment of the plot and as such they bave suffered loss and damage. There being no notice of intention to def end the action, the plaintiffs obtained the default j1Jdgment on 20 October, 1994. Tb.e defendant was adjudged to give the plaintiff possession of land described as plot number LC/39 and pay costs of the action. In support of the application to set aside the default judgment herein, it is deponed tbat the letter of demand and the writ of summons were never receivB.:l by It is stated tbat the only documents the defendant. the defendant received were the notices of assessment of damages of 8th Jlme, and 5th October , 1995. It is further deponal that the defendant ba.s a gocrl defence to the plaintiff's claim which is as follows: 11 (a) the defendant denies having ever received notice from the plaintiff to quit the premises prior to October, 1994 or at any date at all prior to October, 1994. • .......,, • • , ,< . . . ·- .. ... ............ . ... "'1 . ' .. -~' l" - - - -~ "-':' . .,. ., ..... ..,. , .. ,,... ,.,... ,..,. T"l,..,., ,;.~~~~~-;!!~~~~:~~:= ' --- ·- ---·- . - . . -.... .. - - -~ , · -· -- - 1 ' • . , . ~ - - . -·-- - ----~~· . - - -- --,--- l'"~--:-~~-':;,~l~I ·,- ' . .._;: .'•}.·:,t .•. ' ! (b) the defendant denies having ever refused or nEglected to accede to the request to vacate the premises or having unlawfully remained on the premises upon being told to do so (c) the defendant denies owing the plaintiff any money or SlJIDS of money in respect of mesne profits from 1st day of July 1994 or from any date at all until October, 1994. if, which is denied , the defendant owed any (cl) money to the plaintiff , then the defendant contends that the same were duly paid to the plaintiff upon the defendant vacating the premises in October 1994 , 11 It is common ground that this court has a discretion to set aside a default judgment 1J11der Order 13, Rule 9 of 1he Locus clasias on the Rules of the Supreme Court. the guidelines which t:b.e court must apply in exercis ing its discretion to set aside a judgment were laid down by the House of Lords in E.'vans V llirtlam ( 1937) A. C. 473. The guidelines laid down in that case have been consistently followed to the extent tbat it is now simply a question of applying them to different factual let me situations. recapitulate those guidelines. Perbaps at juncture, this The House of Lords stated tba t in matters of discretion no one can be authority for another but, (a) a judgment signed in default is a rEgUlar ·~ . J .. !\~:,• ".- 'J,')t=> ,,.:·'f_..,;, .~,.'l~'!"•- ·' - juclgment from which, subject to (b) below, plaintiff derives rights of property; the the the Rules of Court give judge a (b) discretionary power the default jur..igement which is i.n terms 1 1Jnco11di tional' and the II lay down rigid rules which court should not deprive it of Jurisdiction", (per Lord Atkin at p. 486); to set aside (c) the purpose of this discretionary power is to avoid injustice which might be caused if judgment followed automtically on default ( d) the the prlillary consideration is whether defendant "bas meci.ts to which the Court should pay heed" (per Lord Wright at p. 489) not as a matter of law but as a IBtter of common sense since there is the no point in setting aside a defendant bas no defence and if merits are shown the "court will not prima facie, desire to let a juclgment pass on on which there has been no proper adjudication" (per Lord Russell at p. 482). judgment if (e) Again as a matter of comm.on sense, though not ma.king it a condition precedent, the court will take into account the explanation as to how it came about that the defe11dant folmd himself bound by a judgment regularly obtaina.1 to which he could have set up some serious defence. 0 per Lord Russell" . to In my view, it is important, in applying these .. ' ,,.. .,., ,\ - •• - - - -... -" .. •~ ·- · · ··· .. ,, .. , .. ........ , .... - , . . . •• . . .-....... ~· • t:r•1 .. ------· -- t~ . i ti ·•1 ~.; . "" ..... t ~·· ~i 1' ~! . . ,4 -~~~;t',;?f't-K~~;'<i-~ - \"'¥ ... ... . . :.,_~1/~ .. 't • ' ---- - -- "'""'•~ ! I , .~ . - •11i/ :-,~:. t '.·.::J~~~-i:~~~- guidelines to be clear what the pr11IBry consideration means. in relation to R. S. C. Order 14 tlr. J".fanyungwa on bebalf of the defendant arguB:J. that a defence on the merits meant an arguable case i.e. a case which ought to go to trial. This is a phrase to commonly used indicate the standard to be met by a defendant who is If it is used in the same asking for leave defend. sense in relation to setting aside a judgment, it does not, their Lordships indicatB:J.. All of them clearly contemplatB:J. that a defendant who i s asking the court to exercise in his favour should show a defence which bas a real prospect of success . In E'vans V B=lrtlam itself there was an obvious defence under the Gaming Act. in my view, accord with the standard Turning to the present case, i_t is clear from the defendant's affidavit in support of the application that he gave up possess.ion of the said plot in October, 1994. That was the month the j1Jdgment was obtainB:i by the plaintiff's in default of defence. That judgment in so far as is material, was in the following terms : ". . . . . it is this adjudged that the defendant do give the plaintiff possession of the land described in the statement of claim as plot number IJ:/ 39 and pay the plaintiff costs to be taxed if not agreed upon.'' Admittedly m their statement of claim the plaintiffs had also claimed damages a mesne profits from the 1st day of July 1991±, tip to the date of delivery of the said plot but this aspect of th!'.? matter vvas apparently arendoned by the plaintiffs on entering Judgment. It is surprising to note that sul1sequent to the judgment, the plaintiffs filed notices of assessment for damages or mesne profit. The court cannot assess damages or mesne profits as there is no judjment on these. It is, of course, open to the plainti.ff to amend his judgment to encompass dam--'J.ges or mesf1e profit but as it is, no assessment of the same can be m.sde by the court. thE? plaJ_ntif f vaca tal the As I have indicated above, premises in October, 1994. 11:iere is no neeci of set ting the the defendant to give possession of the said p1ot to the plaintiffs. judgment aside which requires terms in In so far as the defence disclosE?d in the affidavit relates to the defendant b.a.ving paid mesne profits to the plaintiffs, this aspect of the defence is prerna ture judgment to ba.ve mesne profits or as there is no damages assessed. I accordingly dismiss the application with costs. liADE IN CHA1iBERS this 1st day of December, 1995 , at Blantyre.