Malawi Development Corporation v INN (Civil Cause 3580 of 2001) [2003] MWHC 123 (4 December 2003)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 3580 OF 2001 HIG r \"”“’ - “OURT ; LiIBRAa® v S BETWEEN: MALAWI DEVELOPMENT CORPORATION ........ccccccovuruninnnne PLAINTIFF AND CHITIPA INN DEFENDANT CORAM: TEMBO, ASSISTANT REGISTRAR Dr Mtamba, Counsel for the Plaintiff, absent. Ngwira, Counsel for the Defendant ORDER 9 Rules of Supreme Court to This is this court’s order on hearing the defendant’s application made set aside the default under 0.13 r judgment that was entered for the plaintiff herein. The defendant seeks to have the said judgment set aside for irregularity in that the writ of summons that originated this action was not served on the a wrong party to this action. defendant and that the defendant is affidavit of Mr Simuchimba, the The application Managing Director of Chitipa Inn Limited. is supported by The plaintiff was not present at the hearing although it had filed an Mr Ngwira, acting for affidavit opposing the defendant’s application. the plaintiff, adopted the affidavit of Mr Simuchimba. The plaintiff commenced this action against the defendant on 3™ December, 2001 for K468,771.84 interest, K440,992.77 surtax and K330,744.58 collection charges. the sums of K1,736,196.00 debt, recovery of And default judgment was entered for the plaintiff for those sums after the defendant failed to give its notice of intention to contest the plaintiff’s claim. My Ngwira for the defendant argued that the default judgment was entered for too much in that at the date of the judgment part of the debt owing had already been liquidated by the defendant. To substantiate that assertion some receipts issued by Dr Mtambo In the law firm for such payments by the defendant were exhibited. affidavit of Mr Simuchinba the receipts were said to be marked exhibit CS3 a, b, ¢, d, and c. But on an examination of the said exhibits this court notes that the said exhibits all bear the mark ‘CS3’ without any further distinction. is difficult to proceed in reliance on As such this court finds that it As a result the defendant’s such exhibits under the category “CS”. argument that the judgment was entered for too much shall not succeed as there is no proper evidence for this court to proceed on. Mr Ngwira for the defendant also argued that the defendant was a a limited liability company as wrong party sued since Chitipa Inn is opposed to the Chitipa Inn sued herein. That argument is correct. Chitipa Inn and Chitipa Inn Ltd are two different entities. The plaintiff would have been at liberty to apply to amend the defendant’s name herein under 0.15 r 6 Rules of Supreme Court but chose not to appear at the hearing. is clear that Chitipa Inn In the circumstances of the present case it Chitipa Limited were not the party served with the pleadings herein. Inn was the one that had been served. And so, the default judgment against Chitipa Inn Ltd was irregularly entered and is set aside having been entered against a wrong party and without due service of originating process. Such irregular judgment can be set aside ex debito justicie. See Anlaby v. Praetorious (1888) 20 QBD. The default judgment herein is therefore set aside with costs to the defendant. The defendant tried to seek this court’s order to set aside a consent order entered into between the plaintiff and the managing director of Chitipa Inn Ltd. This court is of the view that the same was improperly made. That application was not on the summons before this court and this court can not entertain it. Made in Chambers this ............ . December, 2003.