Dyson v NICO General Insurance Company Limited (Personal Injury Cause 678 of 2013) [2014] MWHC 509 (11 June 2014)

IN THE HIGH COURT OF MALAWI ZOMBA DISTRICT REGISTRY PERSONAL INJURY CAUSE NO. 678 OF 2013 Between: MILIYAS] DYSON(Malle).......sssecsscsssssssscsssssstsescersssnrsssssensessseeeseceseseees ss PLAINTIFF And NICO GENERAL INSURANCE COMPANY LIMITED..........-..scceeeeseereee DEFENDANT Coram: Howard Pemba, Assistant Registrar Mr Ching’ande of counsel for the Plaintiff Mr Mbwana, of counsel for the Defendant Mr Nthondo, official Court Interpreter RULING This is an application by the defendant under Order 13 rule 9 to set aside the default judgment entered herein on the ground that the defendant has a defence on merits. In support of this application, the defendant filed skeletal arguments and an affidavit sworn by Mr. Elliot M’bwana, of counsel. Attached to the affidavit is the defendant’s defence marked EM1. In both of these documents in support of this application, the defendant’s sole argument is that they have a defence on merits to the Plaintiff's claim and they are desirous to defend the matter. That this being the The plaintiff is opposed to this and also filed an affidavit in opposition to the Defendant’s application sworn by Mr. Ching’ande. In their argument, the Plaintiff avers that there has been inordinate delay and the Plaintiff has not disclosed any reasonable explanation as to why the delay and how the default judgment came about. Thus, they pray that the defendant’s application be declined with costs or alternatively if the court sets aside the default judgment, then it should accompany some stringent conditions such as that the defendant should pay the assessed damages of K4,820,500.00 into court or that the defendant do pay the Plaintiff costs of the litigation this far within 14 days. Having heard both parties, this court called upon to determine whether or not the default judgment referred to herein should be set aside on the ground as aforementioned. The law regulating issues relating to default judgment is provided under Order 13 Rule 9 and also Order 19 Rule 9 of Rules of the Supreme Court whose relevant provisions are to the effect that the Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of these orders. Order 13 talks about judgment being entered against the defendant for failure to give notice of intention to defend while Order 19 talks about judgment being entered against the defendant due to default by the defendant in serving defence to a claim. | have thoroughly considered this applicable law whose ambit was considered by the Court in numerous decided cases. The general rule which is agreeable to all is that unless and until the court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedure. See also Evans v Bartlam {193})AC 480, Grimshaw v Dunbar {1953} 1 QB 408 and Hayman v Rowlands {1957} 1 ALLER 321. It is trite law that the court has jurisdiction to set aside judgment entered in default of failure to comply with rules of Practice which is inclusive of failure to enter an appearance despite any reasons for the delay or failure to file defence if the defendant has indeed a defence on merits. However, courts have the duty to guard against the propensity by some defendants of playing pony with the Court and achieving in the process defeat or frustrating or prejudicing the Plaintiff’s legitimate claims and fruits of his litigation in the name of “we have a defence on merits”. In the present case, there is an application by the defendant to that effect that the default judgment herein should be set aside on the ground that they have a defence on merits. The plaintiff has objected to it on the main ground that there is a delay. It must be noted that the issue of whether the judgment was regularly entered or not is not in dispute. This was the judgment that was entered regularly, the Defendants having failed to acknowledge writ of summons and subsequently enter defence within the prescribed time. In the same vein, from the authorities cited above, whether a regular default judgment should be set aside or not is in the discretion of the court. The defendant does not have this as of right. In the case of Santagostino vs Attorney General (1997) 1MLR 73, Mwaungulu J stated as follows: “1 have had a chance to look at the decision of the court of appeal in Alphine Bulk Transport Co, Inc vs Soudi Eagle Shipping Co. Inc(1986)Lloyds Rep211@223. There is also a decision of the Supreme Court in Makaniankhondo Building Contractors vs Hardware and General Dealers MSCA Civil appeal No. 38 of 1984(unreported). What comes out from these decisions is that the power to set aside a judgment obtained for failure to comply with rules of court is discretionary.” Be that as it may, it has been repeated now and again that for a regular judgment to be set aside, it is an established principle that the defendant must show a defence on merits. For the defence to suffice as defence on merit for the purposes of setting aside a regular judgment, it has to carry with it real prospects of success otherwise it fails as a defence on merits. See the cases of Thindwa vs Attorney General 19972MLR 45@47 and also Mangoche vs Women’s World Banking(supra). In the present case, | have had an opportunity to look at the defence and | agree with the defendant that it is a defence on merit. However, even though on the application like the present one, the major consideration is whether the defendant has disclosed a defence on merits; and this transcends any reasons given by him for the delay in making the application even if the explanation given by him is false (see also Vanot v Awford (1986) 83 LS GAZ. 1725; (1986) the times, April 23 CA), there are still other factors to consider. Counsel for the defendant has said that the other factors are irrelevant provided there is a defence on merits. With due respect, | am unable to join the defendant in that line of thinking. Much as a defence on merits is indeed a major consideration, some other factors such as instances on how the default judgment came about and explanation as to the delay are relevant as well as necessary to exercise the mind of the court in exercising its discretionary power of whether to set aside the default judgment or not. in the same vein, the court has indeed observed that the matter has passed several stages before the defendant woke up to make the present application. Since 22" October 2013 when the default judgment was entered, the matter was called for assessment of damages on 12° November 2013 and there is evidence that the defendant was served with the notice of assessment but was not available during the hearing. Later the order on assessment of damages was pronounced by this court on 6" January 2014 awarding a total of K4,820,500.00 in damages to the Plaintiff. Subsequent to this, a writ of fieri facias and a warrant of execution to recover the said judgment were issued against the defendant and the Sherriff of Malawi enforced the warrant against the defendant by seizing and removing chattel on or about 10" February 2014. Then it was at this time that the defendant woke up from the deep slumber and made an ex-parte application for stay of execution which was granted pending the present application. Obviously, one would always wonder as to why the defendant just looked at the matter growing in that way and only to gag the process at this advanced stage. Surprisingly, there is nothing that the defendant has said in the affidavit in support as to why the default judgment came about and why there was such a delay. This information, | believe, would have been relevant and necessary though not major considerations as we all agree. | think the defendant should stop believing that they can handle the court process in any way they desire; allowing judgment to be entered, allowing the assessment to take place and watch the court issuing a warrant of execution and then turn up to say they have a defence on merits. This must be put to stop and | agree with the Plaintiff that it is tantamount to an abuse of the court process. In view of the foregoing observations, it is my ruling that, to ensure that there is no further delay which will be tantamount to an abuse of the court process, the default judgment herein will be allowed to be set aside on condition that the defendant should pay the assessed damages of K4,820,500.00 into court within 14 days from today and then they can serve their defence to the Plaintiff within the same period. Unless that is done within the prescribed period, the defendant shall be at liberty to enforce the warrant of execution through the Sherriff of Malawi. The defendant is condemned in costs. DELIVERED in chambers this 11°" day of June 2014 at Zomba. Howard Pemba ASSISTANT REGISTRAR