Mbulo v Attorney General (Civil Cause 404 of 2020) [2023] MWHC 104 (31 March 2023)

LOWRY MBULO,.. cs cee eee cnn er IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY CIVIL CAUSE NO, 404 OF 2020 BETWEEN wets ceees AND ATTORNEY GENERAL... .0. cee creer ene nee eee vee cen ees CORAM: A. P KAPASWICHE Chihana Chirwa Kumwenda ASSISTANT REGISTRAR Counsel for the Claimant Counsel for the defence Clerk/ Official Interpreter RULING peuseeeereee ee CLAIMANT weseseeeees DEFENDANT BACKGROUND) | The Claimant commenced the present proceedings through Summons Gpedially Endorsed). © ve on the 1g May 2020 and served on the Defendant on 20th May 2020, » The Defendant did not. . - file a defence within the prescribed time and a default judgment was entered on “sath July, : 2030, The matter was s scheduled for assesment of damages. Before, this court could proceed to hear the assessment of darnages payable, the defence brought two applications, namely oe an application to stay the assessment of damages pending the determination of an application for setting aside the default judgment and the actual application of setting aside the default Judgment. This court heard the parties on the application to stay assessment proceedings and subsequently granted the stay. The Court then proceeded to hear the application to set aside the default judgment and this is my determination of the said application. THE EVIDENCE The application by the defence was supported by a sworn statement by Counsel for the Defendant. it was the evidence of the Defendant that the Claimant wrote a demand letter addressed to the Attorney General which served as a notice of his intention to commence legal proceedings against the Defendant as required under Section 4 of the Civil Procedure (Suits by or against Government and Public Officers) Act but the same came to the Defendant’s attention on 1" April 2020. This meant that the Claimant had up to three months from the 1 April 2020 to commence the intended legal proceedings and the date fell on 1% July 2020. Nonetheless, on 24‘* April 2020 the Defendant responded to the demand letter denying liability. it was the further evidence of the Defendant that despite the statutory requirement of three months’ notice, the Claimant on 19" May 2020 commenced legal proceedings and the process was served on the Defendant on 20" May 2020. The Defendant did not file a defence and a default judgment was subsequently entered on the 14‘ July 2020, The Defendant testified that their failure to file a defence was mainly due to failure to timely locate the required documents due to huge and numerous documents that the Defendant's registry keeps. The 2 situation was also worsened by covidet 419 ) pandemic as staff were e woiking 0 on a shift aid ‘this. effected the work 2 ais the file aind its contents could not be epr oper ya accounted for. “The Defendant argued that they h have a defence ¢ oh mer rit justifying setting aside the default oe - judgment gr anted | inv the present case, Firstly, it was ‘stated that the Claimant commenced th . proceedings prematurely before the elapse if the mandatory required 3 months and this is is 7 ‘clear contravention of Section 4 of the Civil Procedure Suits by or Against ‘Government and fo Public Officers Act. It was argued that by operation of the law, there is no claim at all against the Defendant. Secondly, it was stated that the Clalmant’s Claim has no basis at law as the Claimant alleges that the Defendant has a statutory duty to compensate him for damages emanating from public riots but no law is cited in support of the contention, This means that the Claimant’s assertions are unfounded at law. The Defendant went further to argue that if it was to be assumed that the Claimant’s claim fs premised on the Riot Damages Act, the same gives discretionary powers to the Minister responsible who can choose whether to exercise them or not. As such, if one was to inquire on why the Minister did or did not exercise the said discretion, the proper way is to bring a judicial review claim and not Summons and on this basis the Claimant’s claim has to be dismissed. Further, the Defendant stated that it is not aware of the angry demonstrators as alleged and it cannot be liable for their conducts in all circumstances. The Claimant opposed the application through a sworn statement by Counsel Chihana. She stated by confirming that the notice of intention to sue the Government was served on the Government who duly responded by denying liability on the 24" April 2020, She stated that where the Government apts to deny ability in toto, the time lapses at the time such a response is made. It was stated that the problem raised of failure to manage legal documents is an administrative issue which should not be used as a basis for which a party fails to act. It was further stated that the claim has a legai basis as Section 9 of the Riot Damages Act places a statutory duty on the Defendant to compensate victims of Public Riots. Counsel for the Claimant stated that a reading of Section 9 one can deduce that a victim of damage suffered due to riots is entitled to compensation by Government. The Clainiant proceeded to. state that claims regarding personal injury. and damages to. - property have since time immemorial been commenced by way of summons and there | isno.. ce issue with the Clatmant’s way of commencement of the proceedings | in question, It was 5 also — : stated that the De fendant ¢ cannot ‘lain hot to have knowledge of the riots ag ‘the news “of. violent demonstrations due to the 2019 presidential election was known: to every Mal lawian. . whether living in “Malawi or abroad, the’ Claimant pleaded ‘that the ‘default judgment was - regularly entered and the Defendant has failed to demonstrate satisfactory reasons for their failure to defend the matter in time and further there is no demonstration of a defence on merit. The above represents a summary of the material evidence that came before this Court. THE LAW SETTING ASIDE DEFAULT JUDGMENT The law on setting aside default judgment is provided for under Order 12 rule 21 of the CPR 2017. The rule provides as follows; (1) ‘A defendant against whom judgment in default has been entered may apply to the court to have the judgment set aside (2) The application under sub-rule (1) may be made not later than 3 months after the judgment is entered and shall— (a). set out the reasons why the defendant did not defend the application, (b), where the application is made more than 3 months after the judgment was entered, explain the delay; and the court shall not set the judgment aside, unless itis satisfied that it is in the interests of justice to do SO; (c). give details of the defence to the application; and (d).have 4a sworn statement in support . of | the — application. (3). The court may set aside the judgment in default if it Is satisfied that the defendant “@ has shown: réasonable | | cause. = for not. “defending “the = application; oo and (b). has a meritorious defence, elther about his liability for the application 0 or about the. | . amount ae . oe re oo application. ee (a) At: . the ae “hearing fie thes. applica ° “the “court. - shall @. give directions about the fil ing of the defenige ‘and other statements of the ca eo (b).nake an order about the ‘payment “of the ‘costs incurred to dater (c).consider whether an order for security for costs should be made; and (d). make any of their order necessary for the proper progress of the proceeding. ANALYSIS OF THE LAW AND SUBMISSIONS The evidence in support and in opposition to the application has already been summarized above and it is not my intention to repeat the said evidence suffice to state that in my analysis | will only refer to the relevant evidence with regard to the main contentions in the present matter. Under Order 12 rule 21 (3) of the CPR 2017, the court may set aside the judgment in default if it is satisfied that the defendant has shown reasonable cause for not defending the matter and has a meritorious defence, either about his liability for the claim or about the amount of the claim. The above stated considerations have to be considered together with the overriding principle of the interests of justice as provided under Order 12 rule 21 (2) (b) which emphasizes that the court shall not set the judgment aside unless It is satisfied that it is in the interests of justice to da so. My appreciation of the evidence before me leads me to the conclusion that there are triable issues necessitating allowing the Defendant to file the defence and have the matter determined on merits. There is one main issue that | opine to be fundamental as raised by the Defendant. The issue has to do with the question as to whether the proceedings were prematurely commenced. Section 4 of the Civil Procedure (Suits for or against Government and public Officers) Act does provide that no suit shal} be instituted against the Government until the expiration of three months next after notice in writing has been delivered to or left at the Office of the Attorney General. it is not in dispute in the present case that the Claimant commenced the action » before the expiry of ‘the three rhonths a as the Claimant admitted ‘that tt e notice 0 commenced on nthe agh May 2020. the contention from the Claimant is ‘that they did so o because As theD Defendant responded to the demand letter on n24" Apri ic intention to sue was sent to the Defendant on the yh March 2020 and the action herein was In the understanding of the claimant, the three r months period of notice requirement stopped operating after the: response on denying liability hence the teason for proceeding to commence | the proceedings. In my view, the position taken by the Claimant is not provided by the law as Section 4 does not state as to whether upon denial of liability response from the Government then the three months’ requirement ceases to operate. The Interpretation of Section 4 affects the legality of the proceedings in general and this is a ground enough to have the matter be referred for trial for the Judge to determine as to whether these proceedings were indeed prematurely commenced and if yes what is the implication. | should agree with the Claimant that the reasons advanced for failure to file the defence within time are not justifiable but in the interests of justice, the issue on premature commencement of the proceedings justifies setting aside the default judgment herein. This Court, therefore, proceeds to set aside the default judgment and orders the Defendant to file their defence within 14 days. Pronounced this 31°t day-of March 2023 at LILONGWE ANTHONY PITTLIZANI KAPASWICHE ASSISTANT REGISTRAR