Mpungulira Trading Ltd v Action Aid (Civil Cause 131 of 1993) [1993] MWHCCiv 45 (6 April 1993)

IN THE HIGH COURT OF MALAW I PRINCIPAL REGISTRY CIV IL CAUSE NUMBER 131 OF 1993 BETWEEN: MPUNGULIRA TRADING LTD. PLAIN TIFF and ACTION AID DEFEND ANT CORAM: D F MWAUNGULU , REGISTRAR Chirwa , Counsel for the Plaintiff Chiligo , Counsel f o r the Defendant ORDER o n to set aside a judgment in defaul t of summons This is a j u dgment was obtained notice of intention to defe n d . The I t was entered by the for K359,199 . 09 and Kl2 , 909 . 95 costs . Deputy Registrar The defendant had not in fact lodged a notice of intention to defend in court. Although on setti n g aside a judgment for irregularity , the irregularity must be stated in the summons (Order 2, Rule 2 of the Rules of t h e S upreme Court , Mos s vs Maling (1886 ) 33 Ch. D 603 ), apart fro m th e d efe nce on merits the judgment ought to be set aside. Each party to bear its own costs. 22nd of Febr u ary 1993 . t h e to the defendant. t wo ca u ses of action. The action is based on The plaintiff took out this actio n on the 1st of Febru ary The 1993 . first cause of action relates to a contract by the plaint iff It is to supply goods and services alleged that the defendant has not p aid th e price. The to my mind , not based on any second ca use of action is , to supply goods and contract. The servic es to a contrac t was the told General Farming Limited not to buy the goods defendan t The plai n tiff is claiming Kl 70,000.0 0 from th e plaintiff. the writ were worth of sales. served on a the 4 t h of Febru ary process ser v e r of 1993. the defenda n t perso n a l ly by Mr . Nyalugwe, th ir d party , Genera l Farming Limited. The Stat ment of Cl aim a n d Th e plaintiff had agree d t he plainLiff , o n for Kl70 , 000.00 . is alleged that It Judgme nt in default of notice of intention to def e nd was obtain ed on 22nd Febr uary 19 9 3. the 23rd of February Th e warrant of 199 3 a warrant of execution was iss u ed . execution was staye d on 1st Marc h 19 93 , pending hearin g of this applicatjon to set aside judgment. On 2/ ..... ,~~it '~- ~~~I~ ' ;~ ... '\ii· ,,1'!.,11,,• ~,1Jt•1- e,t\1 ;,{" . J . .l,°'/. ·,\~'"' r;.t,f .;~o: . ~ his summons was ta k e n o n the 25th of F e bruary 199 3 . . ~#pport e d by a n a f f.idav.i t o f Mr. Kombe z .i , , - - It is t h e d efendant's is an f.i. rst po i nt ra is ed ~,~a l practi t .io ne r . \•• .. - ···1-r1 .:rhe irregul arity. ·');lflie irr e gularity is not stated in the summons as i t sh ould. /',;m,\tis the affidavit Th e a ffid avit is ·)f·i •ises it the pl ai n t_i ff was aware of i t . the Th e 9mmiss .1on was not even r ais ed by t h e pl aintiff a m subsume d not to us e it to th e d e tr i men t of the l the appropr iate step would to to set aside so as s umm o ns. The affidavit. accompani ed the affidav it . Ls irregularity and in so far as s ummons the th e in I ~lntion e d summon s . ·J!i'fd ; d ~ i e nd a nt. Under Ord e r 2 , Rul e Bi , to_ proceed with d~term i ne the s ummo n s b efore me. , ,;tu~ 'l(."?;;c" ~.fl~ .; · ''?in t iff , , -t 'L\n e .,:~fend c ompJ.eted by n otice of ha lf , did n ot lodge a£ ter und e r ta k i ng irre gularit y int.ct. i on raise d t h e d efe ndant. t o d e fend in the to do i n Court the is t h e that the summo ns d e fen dant's so on no t.ice of int e n t.ion t.o In fact , b e li e vin g that the had been so J. odged . . . . a in th e · nt est retain Even wh e n t he se beg an proc:es s t o d ut y the Uni ted Ki ng dom de f enda nt's step did t he pr oceed ings he mus t t h e commencem e nt of h a pp e ne d h en, may be re p re h e nsibJ. e . J~f e nd ant se n t d e fence to the Court . : .,;~,J: \.: -';;') It d ocs n ot make Wpa t l~e jud g me nt of the 22 nd of February 1993 irregular . In the the dev e J.opment of courts t h e d e f endant's th e action a nd pla i nt iff s to def e n d did accompany a b it of pomp, fanfare asserti o n to times , pageantry . a~d, at d i sapp ea r trail of \ rerbos i t y and circumlogui ty . At on e st.age a simple act of ,.::lig'xpress i ng inten t ion to d ef end was conjured as " caus ing an ~lpp earance to b e e n te r e d". Behind this ex hib itionism and -•,t;, ~ ;. • ' } 1uac ity was recognition that the def e ndan t , if h e wants to and t. h e court wh ere the t h e po si t io n ·;,- ¢..i,r c um spcc: t.iv c ly stat.c the h as ~J ee n '~4 .tigina t. ing ~ ef e nd a nt. ' s The the co u rt. and p la intiff c:ould not re ly on pr e vious denials by def e nd ant to I t could very well be i hin k ~t hat thr eat of . ki tiga tio n and .i.s n ow n ot. willing to def e nd that th e threat -lj,as b eco me If the defendan t want e d to c:ontest -;,~pe pr o ceedings h e had to s h ow that to the court in clear •,,1~ ~rms . :'i.ft ,,. ;,· The ackno wle dg e me nt of se rv i ce introduced in 197 9 simplified it had an added f he t.o buy adva nt age . to time stay an ju dg me nt has been e nter e d. execut io n aft.e r The rules of the acknowJ.edgement of service hav e not practi ce und er under mined or molif ied the importance of this step in court It is th e duty of the defendant who wants to proceedi ng s . def e nd t he action to lodge t h e docume nts with the c ourt. It is a l so t h e duty of o n e who wants to defend t h e act.ion to clearly, promp tJ.y t.o is s ued. t. h e action will b e prosecuted. the d efe nd a n t. wa s buying It. reduced spurious def e nc e s design e d c on cept of appea r a nc e . the plai ntif f. Of cours e , d efe nd a n ts by giving a real i ty . imme di ate right from time Th i s wa s th e 3/ .. ... - 3 - , .. )§~:; lodge h is documents promptly. of, lo dg i ng he does s o at his plai ntiff or the court. If he resorts to a risk y mode the peril. He cannot blam e In the instant case t he defendant relied on the pla in tiffs pt,ocess se rver to lodge the notice of intention to d e f end. Th~ process server was an employee of the plaint iff ' s l egal p f actitio ners. It is not said that the process server was a legal practitioner, who, if it was the case, would hav e been capa ble of making the undertaking. The notice of i n t e n tion t ,9 ,;, defend was r1ot lodged with the court. There is not hing to . s ugg est that the ' s dut y to proc ess- se rver undertaking. ensure that the notice of intention to defend was lo dg ed in this cou rt . Be could not rely on an undertak i ng f rom the plaintiff's process-server. the legal practitioner was aware of It was the defendan t ,rnd f;c1: v1rc. Then on Llic 23rd or Fr,1Jn1ilr- y 1993 the defc,1vl,111I I.hr_, I o L-1 w or court der c,rwc for ri l inq i_nd ced a rule of pr actice whirli requires that plcadjngs, the defence to the filed by Courts Art Cap. 3:02, made under section 32 of th e Ar t makes it no r e qu irement that pleadings should be filed. Service can be e ffected by the court, but there is no oblig ation that cou rt s should serve these processes. Order 1 8, Ru le 2(1) put s the duty to serve defence on the defendant no t the Court . The sch e dul e the rourt. s r'nl 1 s n o Tl1c'r-c t o "Subj ect to paragraph (2), a defendant wh o g i ves a intention notice of defence on the plaintiff . . . . . . . " to defend shall serv e the de fendant wants If the to use copse qu ences if the defence is not served on the plain t iff, th e on · who time prescribed . s een, is inevitable where, as we have pleadi ng s are not supposed to be filed with the Court . it must certainly be the court he be ars served, within This t he defe ndant 's contention judgmen t was If the plaintiff's process-s e rver did not irreg ul ar because lodge a not ice of the co u rt was intention to defend and holdi ng on to a defence I must point out, after all I have said, that the The judgme n t ho wever is irregular in certain respects no t arg ued by ,'.the defe ndant. judgment here was regularly obtained. is that the judg me nt is for a debt or includes a claim for costs for Kl2, 909 .95. The This wa s a default judgment. Order 6, Rule 2 1 (b) r equ ires that befor e a writ is issued it must be endorsed , wh ere the claim liquidated demand only , wi th a state me nt that the amount claimed in respect of t he d e b t or demand and for costs and also with a statement that fur ther procee d ings will be stayed if, within the time limit ed for ack n ow l edg ing service, so cla i med to th e plaintiff, his solicitor or agent. Th e c osts the defendant pays the a moun t 4/ .... . - - in respect of th e Supreme Court. the fourt ee n day costs , are known as " fourt ee n day costs" . Order V, Rul e l of the Rules of t h e High Court provides that the costs set for th in the second schedule shall be allowed the S~veral matters therein mentio n ed in li eu of the co s t s laid d~wn in t he Rule s of t h e Supreme Court . The second Sch edule l~ys down th e amounts of costs indorsed on a writ of s ummo ns und er Order 6 , Rul e 2 of the The amount of costs to be Rul es of the the amount endorsed by e,_hdor sed would, b e Kll0 . 00 not the plain tiff is plaint iff . the only costs i n def a ult. entitl ed The is obtained amount of cost s claime d th e pla i n tiff is than than is due is bad and enti t l e d will b e set asid e Hugh es vs . Justin (1894)1 Q. B . 667. This asp ect was n ot raised in the summons or affidavit . It was not raised in argu me n t. . Th e plaintiff could not apply for judgmen t as amendment althoug h part of an order to se t. a s ide . Ban Hin Lee Bank Berhad vs . Sonali Bank , The Indep e ndent , Nov e mber 28 1988 . is mor e A judgment for mor e to amend s uch l h ave power Th ese ar e judgment to when to . to is based on the d efen dant th e co n tract b et ween Gen eral Farming and There is an added problem because of the claim for Kl70,000. telling General Farming This Th e defendant. is not Limit e d not to buy from the plaintiff . a party t h e Th e act.jon , in so far as it is alleging that the plaintiff . told General Farming not defend a nt the p l aintiff , is based on tort for which the c laim cann ot be liquidated debt or de ma nd in terms of Order 6 , Rul e 2(1) of ( 1881) 6 the Rules of the Supreme Court . Q . B . 333 , 338 , Lord Justice Brett said : In Bowe n v s . Hall to sell goods to " Merely to p e rsuade a person to break his contract may not be wrongful in law or fac t Bu t if the p ers uasion b e used for th e indirect purp ose o f inj uring the plaintiff or ben efiting the defendant at th e e xpense of the plaintiff , it is a mali cious act which _ls J_n law and in fact a wrong act and therefore a wrongful act if injury ens u es fr om it Th e act is persuasion by the defendan t of a third p e rson to break a contract existing between s uch third person and the plaintiff. " b e e ntitl e d tortious { The ac ts complai n e d of h e re are ( Temp er ton vs . ·. Rus sell (1893)1 Q . B. 715) Th e plaintiff , a ss uming the facts ~ ar e The tr u e , would Th e plaint iff cou ld "' judgmen t could only b e The damag e s would h uve to be not e nter a asses se d. On mere conjecture the pl ai ntiff woul d n ot be enti tle d to Kl70,000.00 as this compris e s of the total sales i n to acco unt what the plaintiff wo ul d have with out taking the ot h er aspect of spent to acquire the goods. irregularity , s ummons or in affid avit . to general damag es . Ju st lik e raised interlocutory . thi s wa s judgment . f in al not the 5/ ..... - 5 - that t h e i mport a nt to p o int o ut these irr e gul ar it ies b ecau se of It i s i n the submission s mad e for t h e plaintiff. t h e strong te rm s merit s a nd t h e summons s h o uld b e dismis se d. Th e pr acti ce of the co ur t s h as b e en gr e a t l y influenced by fluddl est o n , B., i n Farden v s. Ri t ch e r (1889) 23 Q. B. D . 124, 129 r e quir ing t h at there must b e a n a ffi d a vi t o f merits t o set as id e a r eg u lar judgme n t : a f fi davit rais es n o de f e nc e on It was cont e n d e d "A t. a ny r a te wh e r e such an appli c a t i o n i s n ot t h is s uppor te d, it ought not to b e g ra n te d exc ep t for some v e ry suffi cie nt reason." a f fi d a vit ~The Ch ie f Jus t ic e Skinn e r i n Kamchunjulu vs . Mag areta 't~- (1971-72)6 A. L. R. Mal 412) pointed out t h at t h e Ba r o n d id i n f lexible rul e . J. s an v'n ot say t h at i t. If t h e re ar e good ·and s uffici e n t r ea so n s , a judgment would b e set as i d e eve n ~if th e in support of the appli cat i o n d oe s n ot discl ose merit . I th i nk t h e present cas e is s u c h a on e a s I t rying to demons t r a te. First t h e c l a im for co s ts have bee n is gr os sly wrong and exorb i tant. Secondly, t h e judg men t as Fur t h er , to par t of th e claims could only be interlocut or y. o n although a r e lyin g i t is proc ess -s e rv er to lodg e n ot ice of intent i on to d efe n d a suf f i c ient r e a so n judg me n t ju s tify set ting asi d e the court s will be c au se t h e re a son for t ake into acc o un t defaul t (Evans v s. Ba rtlam (1937)A. C. 451, 480; Alp ine Bulk · Tran s p ort Co . Inc. v s. Sa udi Eagle Sh i pping Co . Inc., Th e Saudi Ea gl e (1986)2 Ll o yds Re p 221, 223. the defendant was indiscrete t h e i n t o 1 n is th e r e th e oth er hand in the statemen t some me r i t in the affidavi t 1n support of the d efe n ce On t h e appl ica tio n. exhib ite d o f cl a im th at h e The p lai ntiff contends Invo i c e s we r e s e n t to suppl ie d v a ri o us goods and s e rvices . the d efe ndan t . In h is d ef e nce, the d e f e nd a n t s ay s th at t h e in v oi ces sh o we d unde rsu p plying. There is a r ea l d ispu te a s i n vest i gati o n or Th i s would requir e .- to ho w much is owing. t o as ce rtain th e actu a l amo u nt. Th e , enqui ry in t o th e b o ok s t h is ~9uest io n i s :, unc e r tai n i ty a s Th e an swer may r be in t h e a nalogous ca ses unde r Order 14 of t h e Rul es of the '. Supr e me Cour t . For s ummary judgment, much 1 i k e h e r e, fi n al Jb udgment would not be had i f the defendant s how s go od g ro un d ( 1 9 4 8) l }fo r d e f e nc e . In Con tr a c t Discount Ltd. vs. Fur lon g judgme nt stand is actually owing. in vie w of to wha t s h o uld t h e Al l E. R . 274, 276, Lo r d Gr ee n M. R. said: t o i te ms a mo u nt owJng r e s p ect o f wh i c h th e mse lv e s are acc o unt i ng pa r tie s "The the pla i n ti f f s onl y b e ascc r ta tn e d on the ta k i ng o f b ri nging co n tra pl a in t iff s I s h o uld hav e thought that in a case o f th is k i nd, r e l a ting a nd d e p e nding as it do e s must, on ma tters of acc o un t , the t ha t would h a v e justified a nd In a co urt t o g i ve un co nditional l ea v e c a n really a n a cco un t t h e i ndee d, t o de f e n d. c h ar a cter, claim of th is l e d in t o a 6/ . ... - 6 - .1- s case wh ic h e s s e n tially a matt er o f ac:counts, wh ere th e a mo unt ca n o nly b e asce r tai n ed , from the a c co u nts , it s ee ms to me that it p l aintiff ' s o wn wo ul d t h e defe n dan ls of b e their prl ma fac i e ri g h t t o c h a ll e n ge t h e items in th e acco un t. a nd insist o n st r ic t p roo f of them". t o d e pr i vc i mpr o p er t h a t h ere i n s ist s the p l ain l~. i ff s ' The def e nd a r'l t J nvoices were cer ti fie d , app r ove d and paid by t h e d e f e nd a n t while the S trictly there s hould c o mmodit i e s were bei ng de s pa t ch e d . in d iscre p anc:i es Th e e v i d e n ce of h ave bee n s ubj ect o f e n qui ry and d e l iveries , h o wever , c a n o n ly b e these in vestigatio n a mo un ts . to c .i rcums t a n ce:s en tcr i t wo u l. d The ,1111 o u11l [ 0 1· ju dr:irnr nl s h o ul d rr q u11·c L h c pla i n l.it f Lo p rove lh c amounts d cfcndo n l cl aime d . t h ro u gh normal adj u dicatio n . t h e b r wro n g 0 11 L h c pL1in l i [ f"' s Th e best wa y in pr i nc i p l e' ascertai n 111 vo 1crs. p a y me n t. to do In t·. o t h is t h e lh r' J_s I set aside T h e defe n ce s h o uld b e se rv e d p art.ies c: a n ap p e al to a J u dg e in c h a mb ers . E ac h p arty to bear t h e n e x t four tee n i n judgm e n t. . t h e its c:osts . days. The Ma d e i n Ch a mbers th is . bt\ day of -/fy _;/1, 199 . t--------~, D F Mwa REGISTRAR OF H COURT