Kalua v United Printers Ltd (Civil Cause 520 of 1994) [1995] MWHCCiv 17 (5 October 1995)

-•• · .. 'r' IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 520 OF 1994 BETWEE N: KAMLEPO KALUA UNITED PRI NT ER S LIMITED - and - CORAM: Tembo , J Ny ire nd a, Counsel for the Plaintiff Mbend e la, Counsel for the Defendant Je re, Official Interpreter R U L I N G PLA INTIFF DE FENDANT This is a n ap peal by the plaJ.ntiff against the decision of the Registrar gi ven on 5t h October, 1994, setting aside a default By Orel. 58. r.1 of the Rules of the Supreme Court, I judgment. am oblige d the t o deal with applicati on before the learned Registrar. tt1e appeal by way of re-heari ng The wr i t was served on The defendant did not give notice of his The pla in t if f has claimed exemplary damages from the de fendant for libe l, by a writ of summons which was issued on 15th March, 1994. tl1e defendant by post as it is clearly e vi de nced by the affidavit of the plaintiff's process in te ntion to server. defend. Thus , no notice of intention to defend havin g bee n given jud gment for by the de fen d ant, the plaintiff proceeded to ent e r the dam a g es c laimed, which had to be assessed. fl date for the the said damages was appointed by the Re gistrar, assessment o f ~oticE of wh i ch was given to both parties. It is only t hen that the defend an t had taken some action, by obtaining an orde r of the Court s t a yin g further proceedings in the above cause pen ding the th e defendant's applicaton to set aside t he default hearing o f judgment. the Court's the defendant obtained decision, whi c h was made and delivered by the Registrar, on 5th October, 199 4, setting aside the default judgment and granting leave t o the defendant to serve his defence within 14 days of is against that decision that the plaint iff has that dat e. made that the decision of the Registrar should be re s cinded and that the default judgment be r estored, according ly . the ap pea l before me; Thereafter, I t have he ard both counsel, each of whom has made I submissio ns before me, his par t , Mr Nyirenda, by its pr opo se d defence, to the effect that- lengthy in favoi1r of their respective clie nts. On in the main submitted that the d e fendant HIGH COi. JR ·r .~ ... ll8HARv ----------' - 2 - that there was t he defendant was not the publisher or owner of the the ne wspaper cal led "the Chronicle" as alleged by the no publication of pla intiff; de f amatory material by the defendant; and that e ven if i t may be held that there were such publication by the def endant, that such publication was in respect of the communica t ion of the same between the defendant as the Pr i nter, on the one hand, and the publisher/ow ner of t he newspaper, on in circum stances the other hand wh i ch rendered the communication to be privilege d, raised further merely in so doing merely made a general deni al that the defen dan t had in the defen dan t was not the owner/publisher of the newsp aper a defence of qualified questio n an d privileg e wi t hout stating facts in the affidavit discl os ing who the owne r/pu bli sher of the newspaper was or upon which th e Court would fi nd t hat the defence of qual_ified privilege was bas ed. In the cir cums t ances, Mr. Nyirenda contended learned to have held the view of the plaintiff that the Registrar oug ht in defenda nt we re also publishers and question by which view the Learned Registrar would al so have rejected the defendant's defence of qualified privile ge and, therefo re, s hould not have set aside the default judgment in the above cau se. Hence, now, this appeal to rescind the deci sion of the Lear ne d Registrar and t o restore the default judgment. O\t✓ ners of the newsp aper that the the merits inorder to set aside the said in question was a regular judgment On h is pa rt, Mr Mbendela, Counsel for the defendant, mai ntained the vie w th at on the authority of Ord. 13 r.9 (5), the default judgment in regard to which that the defendant has a there mus t be an affidavit showing defence on j udgment; that the proposed defence need only to raise arguable or triable issues; t hat i n the circumstances, the defendant proposed defence had suffi ciently raised arguable or triable issues name ly that the defen dan t was not the publisher/owner of the newsp aper in que stion as wa s alleged by the plaintiff and further the defence of qualif ied privilege. Mr Mbendera further submitted th at to be a s k e d n o vi t h e newspap e r ar e is to ask the defendant to provide evidenc e before the matt er is not inorder for the default necessari ly r equired of judgment to be set aside. t h e a c t u a 1 p u b 1 i s h er / own e r o f for trial, which disclosure t o d i s c l o s e w h o tl1e defendant is scheduled Turning o n to the law and practice relating to the issue s raised by this appea l , the following is the position: ord. 13. r9 makes provisi on for the discret i onary power of the Court to se t aside or vary any ju dgment entered under that Order, thus, whe re there has be e n fa il ure The the co urt has principle obv iously pronoun ced a the merits or by consent, it is to have th e po wer to revoke the expression of its coerci ve power where tha t ha s only been obtained by failure to follow an y of the rules of procedure. Such is the principle as was stated by Lord In ttle Atk i n case of Dav i d Whitehead and Sons (Malawi) Limited - V - C Phiri in Evans - V - Bartam (1937) A. C. 473 and 480. to give notice of intention to de f en d. that unless and until judgment upon i s ,. . - 3 - Civil Cause No. stated the following:- 395 of 1990 (unreported) Justice .', Unyolo had '. 11 0 b s 2 n · a b 1 y , t 17 e r e \v a s n o c o n t r o v er s y at t h e h e a r i n g of tile application before the learned Registfar tha t the default judgment in this . case was regular. It is now trite that before such judgment can be set aside, there must be an affidavit stating facts showing a defe nce on the merits and that where such an application is not so supported, it ought not to be granted, exc~pt for some very sufficient reason. The .. landmark case for this have , const antly and which rule followed, is Farden - V - Richter (1889) 23 QB D 124 and according to a later case, namely prayton Gif tware ltd the defence on the merits which the defendant is re quired to triable issue. 11 • show need only disclose an arguable . or - V - Varyland ltd (1882) 132 New courfs here ·LJ 558, the that case, In defence without stating it. aside the decision of the ju dg ment and he, accordingly, defendant In doing so, Unyolo, J. had, judgment. following- the defendant merely stated that he · had a good Justice Unyolo, therefore, had set the the default inter alia, stated the learned Regisrar setting asid e restored 11what the defendant states in these two paragr aphs is the simply that he has a good defence or a defence on m e r i t s t o t 11 e p 1 a i n t i f f ' s c 1 a i m • B u t , a s h a s a 1 r e a d y been pointed out, the Farden's Case rule the affidavit should actually contain requires fac ts showing a defence on the merits. In other words, a bare statement that the defendant has a defen ce on the merits or a good defence, as was deposed the the present case, is not enough. defence relied on should be stated. 11 in The real nature of tl1at the in In t he inst ant case, the defendant has done much more than merely asserting that it has a good defence on the merits without at the the position, in the Case sametime specifying the defence as 1t1as its of David Whitehead and Sons. proposed defence, the defendant has clearly and ·· suffi ciently specified the nature of its defence, namely, that at ' the trial it will contend th at it \vas not the owner/publisher of the new spaper in questio n and that it will also show that as a :' printe r, the publicatio n of the defematory words by it were upon an occasion of qualifi ed privilege. Such being the case, it is my cons idered vie\•J and that tht defendant's proposed defence has clearly issues neces sarily sufficien tly a 1sclosed arguable or required for the case to proceed to trial. By paragraphs 2 and 5 of triable Besides the foregoing, some other very sufficient reason why Registrar should be set aside as prayed for by With resp ec t, I am unable t o find any at all. I have also considered whether there is learned the plaintiff. the order of the - 4 - I n t he cir c umst ances, and f or those reasons, I am una bl e to find a ny ba sis upon w~1ic h to set aside le arned Re g istr ar. Consequently, the order of the Registrar i s con f irmed and t he def e ndant should, t herefore, serve his defenc e wi th in 14 days of t he dat ~ of this ruling. Costs are for the pl a i nti f f. the Order of t t1e MA DE in Cha mber s this 5th d ay of October, 1995, at Bla ntyr e. <-A~~~ AK Tembu JUDGE