Kwakwala v Banda & Anor. (Civil Cause 293 of 2017) [2018] MWHC 1161 (28 November 2018)

'·-·-·-::--,._, HIGH .... -.... .... ..._., CO(•···._ . i . . L1er, 4 Ry J ..rt'{ J N THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 293 OF 2017 BETWEEN LUCIOUS KWAKWALA .................................................................................. CLAIMANT AND DR. JANET BANDA, SC·········································································· 15 T DEFENDANT MALAWI LAW SOCIETY ....................................................................... 2ND DEFENDANT CORAM HER HONOUR MRS. BODOLE, ASSISTANT REGISTRAR Kwakwala, of Counsel for the Claimant Mambulasa, of Counsel for the Defendants Ms. Kazembe, Court Clerk RULING Introduction - The claimant issued Summons for an order to strike out the 2nd defendant's defence. The 2nd defendant raised preliminary points for the Court's determination before the hearing of the Summons. Preliminary Points Counsel for the 2nd defendant raised 3 preliminary points for the Court's determination. These are: 1. Whether this Court having determined that the 2nd defendant had a good defence on merits to the claimant's claim and having all.owed the 2nd defendant to file such a defence, the aspect of the defence has not become res judicata, and whether it is not caught by the doctrine of issue of estoppel and whether the claimant can then purport to resurrect and re-litigate it through an application to strike out such a defence. 2. Whether the present proceedings having been commenced before the coming into effect of the Courts (High Court) (Civil Procedure) Rules, (CPR), the claimant was entitled to bring the present application under the new rules or whether it should have been brought under the existing rules. 3. If the application should have been brought under the new rules, that which is doubtful, what is the effect of not complying with the requirements of Order 24 in the preparation of the documents by the claimant? The Evidence Counsel for the 2nd defendant contended that the 2nd defendant brought an application before the Court to set aside default judgment obtained by the claimant on the basis that the 2nd defendant had a defence on the merits to the claimant's claim. The claimant opposed the application and filed an affidavit and skeletal arguments. The Court having heard the arguments, made an order setting aside the default judgment and allowed the 2nd defendant to file its defence. A question which arises is whether the Court can be asked to strike out the same defence which it formed an opinion on that it is meritorious. The issue of the defence has become res judicata and has been caught by the doctrine of estoppel. The Counsel for the 2nd defendant further contended that since the present proceedings were commenced before the coming into effect of the Courts (High Court) (Civil Procedure) Rules (CPR), the claimant should have brought the present application under the Rules of the Supreme Court (RSC) and not the CPR as he has done. As regards the third preliminary point, Counsel for the 2nd defendant contended that the claimant was not entitled to bring the present application under the CPR as the application does not conform to Order 24 of the CPR. This Order has specified the criteria of which documents must conform to. The claimant's application does not conform to them e.g. the font and the spacing. In reply, Counsel for the claimant contended that when the 2nd defendant's Counsel made the application to set aside default judgment, both parties dwelt on why the defence was not filed in good time. The Court nor the parties discussed the defence. The Court did not make an opinion that the defence was meritorious. The Court just made the order setting aside the default judgment and that defence should be filed. The mere filing and serving of the defence does not make it meritorious. After the defence !S filed, the claimant has a right to attack the defence. That is why the CPR and the RSC provide a reply to the defence. Nowhere do the CPR and RSC provide that once a defence has been filed it automatically becomes meritorious and cannot be attacked. As regards the 2nd preliminary point, Counsel for the claimant contended that Order 35 of CPR provides for validity of process. He submitted that the application to set aside default judgment ably fits under the CPR. As regards the 3rd preliminary point, Counsel for the claimant contended that the application complied with the provisions of Order 24 of the CPR save for the font. As such, the application should be allowed. Applicable Law Order 35 of the CPR provides that "1. Under this Order- . "commencement date" means the date of coming into force of these Rules;- - "existing proceeding" means a proceeding commenced before the commencement date." Order 35 rule 6(3) of the CPR provides that "Where a ne w step is to be taken in an existing proceeding on or after the comme ncem ent da te, it shall comply with these Rules." Order 24 of the CPR provid es th at "2. All do cum ents fil es in a proceeding sha/1- (a) be typewritten in Times New Roman font, size 12, spacing 1.5; ... " Order 2 of the CPR provide s t hat ( ' "1 . The f ailure to com ply with these rules or a direction of the Court shall be an irre gularit}'. 2. Notwiths tr:n ding rule 1, the irregularity in a proceeding, or a document, or a step taken or order made in a proceeding, shall not render a proceeding, document, step taken or order a nullity. 3. Where there has been a failure to comply with these rules or a direction of the Court, the Co urt may- (a) se t aside all or part of the proceeding; (b) se t aside a step taken in the proceeding; (c) declare a docum ent or a step taken to be ineffectual; (d} de clare a docurn ent or a step taken to be effectual; (e) make an order as to costs; or (f) make an y order th at the Court may deem fit. " Analysis The 2nd defendant brought an application before the Court to set aside default judgment. The Court indeed set aside the default judgment and ordered the 2nd defendant to file a defence. The Court did not look at the merits of the defence that was filed together with the application . The Court, in its order, stated as follows : "The 2 nd defendant's application must succeed on the basis that it must be given a chance to defend itself and have this matter determined on the merits and not on a mere technicality ... / will not comment on the merits of the defences I have so far. I believe that's a question for another hearing if at a II. " This shows that the Court did not look at whether the defence was meritorious or not. He reserved that issue for another hearing if the need arises. The Court's order is very clear that the default judgment was set aside just to give a chance to the 2nd defendant to defend the matter. Since the Court did not look at the merits of the defence, t he n t he is su e of the defence being res judicata or being caught by the doctrine of est op pel docs r:o t urise . Order 35 rule 6(3) of the CP R is clearly provides that a new step being undertaken in an existing proceeding on or after the commencement date must comply with the CPR. The application to set aside default judgment is a new step being undertaken by t he claimant. He must, therefore, comply with the CPR by bringing the applicatio n under it. /\s su ch , th ere is nothing irregular in bringing the application un der th e CP R. Order 24 of the CPR deals wi• 1 1 t he format of documents and forms. There are many provisions unde r t his Order as to what the documents and orders must comply to . Of particul ar im pcrtc1 nce to this case is Order 24 rule 2(a) of the CPR . • The application t o set as ide def ence is supposed to comply with this Order i.e . it must be type w ritt en in Ti;11e';" ·n Roma n fo nt, size 12, spacing 1.5. All these have been compli ed w it h cxc0r t ·r~ fo nt. He has also complied with the other provisions of Ord er 2t1 of t he r""' . ~ '.1 e non -compliance is an irregularity which does not render the application a nullity- (see Order 2 rule 2 of the CPR). This Court will just have to resort to the provisions of Order 2 rule 2(3) of the CPR and make an appropriate order thereunder. This Court rules that the application is effectual on condition that the claimant must regularize the application within 14 days of this order. Conclusion The 2nd defendant's preliminary points for determination by this Court are dismissed with costs to the claimant . Pronounced in court this 28th day of November, 2018 at Blantyre . E. BODOLE (MRS.) ASSISTANT REGISTRAR • - 6