Msuku v Manesi, Maganga, Maganga and Persons unknown (Civil Cause 204 of 2021) [2022] MWHC 68 (20 May 2022)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NUMBER 204 OF 2021 BETWEEN: KENNES MSUKU AND ELIZABETH MANESI MIKE MAGANGA JOHN MAGANGA PERSONS UNKNOWN CORAM: JUSTICE M. A. TEMBO Msuku, Counsel for the Claimant Tembo, Counsel for the Defendants Mankhambera, Official Court Interpreter ORDER CLAIMANT 1st DEFENDANT 2nd DEFENDANT 3rd DEFENDANT 4th DEFENDANT 1. This is this Court's order on the defendants’ application to set aside a default judgment entered in favour of the claimant on the defendants’ failure to file a defence in this matter. The application is taken out under Order 12 Rule 21 of the Courts (High Court) (Civil Procedure) Rules. 2. The claimant by a summons filed in May, 2021 sued the defendants in relation to a piece of land situated at Banana in Bangwe herein in Blantyre. He claimed that he is the owner of that piece of land in issue and that in March, 2021, the defendants encroached on that piece of land without his consent. He sought an order of injunction restraining the defendants from encroachment. He also sought damages for trespass. 3. The summons was served on the defendants but they failed to file a response and as a result a judgment was entered against them in default. 4. The defendants now apply to set aside the said default judgment on the ground that they failed to file a response to the summons because they thought the summons was in relation to a matter that they had earlier commenced in the Magistrates Court. 5. Before the Magistrate Court, the defendants had sued one of their relations whom they accused of selling the same piece of land herein to another person, Mr. Chavi, who was made co-defendant in the Magistrate Court. The claimants contended that their relative had sold the land herein, which they claim to be theirs, without their consent. Mr. Chavi was sued as he is said to have held himself out as the buyer of the land. It later transpired that in fact it is the claimant herein who was the real buyer of the land in issue herein. 6. The defendants assert that their defence is that they own the land herein which was wrongfully sold by one of their relatives without their consent. 7. Before the matter went before the lower court, the claimants had gone before the chiefs tribunal where it was resolved that the defendants had to pay off the buyer due to the wrongful sale herein. This is an aspect that the claimant relied on to assert that the defendants have no defence to the claim herein since they only sued before the lower court after failing to raise funds to pay back the purchase price. The claimant insisted that the defendants have no defence since they had accepted to pay back the purchase price and only sued before the lower court after failing to pay the same. 8. This Court has considered Order 12 rule 21 (2) of the Courts (High Court) (Civil Procedure) Rules and observes that, as submitted by both parties, an application to set aside a default judgment ought to be made within three months of the default judgment, failing which reasons for further delay must be explained and the Court will set aside the default judgment only where it is satisfied that it is in the interests of justice to do so. 9. In the circumstances of this case, the defendants filed the present application just over three months after the default judgment. The claimant thinks that the application must not be entertained on that account. The defendants however contend that they delayed due to lack of understanding of matters as they confused the present court process with the process before the lower court. The claimant does not find this reasoning convincing and thinks that this is not a proper excuse for failure to file the present application within three months of the default judgment since the defendants had counsel acting for them before the lower court and ought to have known that the process was to be brought to the attention of their counsel. 10. This Court has considered the circumstances of the defendants and does not find it to be far-fetched that they may indeed have got a mix up in the circumstances where they were claimants in the lower court against their own relative and another person who was holding out on behalf of the claimant in the present matter and now were served with the process in the present matter. The defendants having retained counsel in the lower court matter would have had all court process in the lower court served on their counsel but being lay people it is possible that they really got mixed up given that both the process in this matter and in the lower court related to the same piece of land. The defendants would however have done better to seek counsel on the matter at hand. 11. This Court at the end of it all reluctantly finds that the defendants had a good reason for not filing the instant application within the three months after the default judgment as required by the rules of procedure. And further, that it is in the interests of justice to consider setting aside the default judgment in the circumstances so that the matter is determined on the merits. 12. The next issue for determination is whether the defendants have a defence on the merits warranting the setting aside of the default judgment. As both parties observed, this Court will set aside a default judgment if it is satisfied that the defendants have shown reasonable cause for not defending the action and that they have a meritorious defence. See Order 12 rule 21 (3) of the Courts (High Court) (Civil Procedure) Rules. 13. This Court is satisfied about the reasons why the defendants failed to defend the matter as discussed above concerning the mix up in the process before this matter as commenced by the claimant and the process commenced before the lower court by the defendants in respect of the same land herein. 14. With regard to the merits of the defendants5 defence, as earlier noted, the defendants contend that they owned the land herein going back about 50 years and that it was sold by one of their relaives without their consent. The claimant thinks this is not a defence that has merit. The claimant’s contention is that if the defendants only sued their relative after failing to pay back the purchase money to the buyer then they cannot be said to have a defence. This Court thinks otherwise. If the defendants can show that at customary law, under which the land herein is regulated, there was an irregular sale of the land herein then their defence has merit. The fact that the defendants agreed at some point to pay back the purchase price is inconsequential. 15. In the circumstances of this case, this Court finds that, contrary to the submissions by the claimant, this is a proper case in which the default judgment ought to be set aside and that the matter be determined on the merits. The default judgment is accordingly set aside and the defendants shall file and serve their defence within seven days. 16. Costs on setting aside the default judgment herein shall be in the cause. 17. On a different but very important note, this Court observes that this is a matter concerning customary land and that new legislation has been enacted instituting a new dispute resolution regime with regard to customary land, namely, the Customary Land Act, 2016. See Part VII of the Customary Land Act, 2016. 18. Regrettably, some districts in Malawi, including Blantyre, appear not to have instituted the relevant customary land tribunals. The consequence of this is that such matters come before this Court at first instance and this is not an ideal situation. This Court is meant to sit on appeals only on such disputes as they relate to customary land. However, given the lacunae in the new dispute mechanism on the ground this Court is compelled as a matter of principle to exercise its unlimited original jurisdiction to entertain customary land disputes in a bid to ensure an effective remedy to the citizens as guaranteed in the Constitution. This is however not a licence to those authorities that are required by law to institute the relevant statutory dispute resolution mechanisms to procrastinate for too long. 19. This Court is aware of the fact that there are a number of statutory tribunals that are not functional and which in turn clogs the High Court system to the detriment of everybody concerned. For instance, the tribunal under the Public Roads Act that ought to deal with disputes relating to compensation relating to public roads construction is another example. There are others. This Court wishes to bring this vital aspect to the attention of the office of the Honourable the Attorney General. And to implore his office to see to it that all statutory tribunals are enabled by the relevant authorities so that we have an efficient tribunal system without the High Court being clogged with matters at first instance instead of at appellate level. This Court does not wish to join in refusing to entertain matters that are meant to go before statutory tribunals at first instance when such tribunals are non-existent and only exist on the statute book. The day this Court shall be compelled to do so will be a sad day for justice and the rule of law. Hopefully, the Attorney General will sooner rather than later do a stock taking exercise to see what statutory tribunals are not yet operational and to take steps to ensure their operationalization. Otherwise, if that is not done and when the High Court is compelled to send litigants back to the non-existent statutory tribunals the High Court will have done its part in reminding the relevant authority about the importance of those statutory tribunals enacted by Parliament. Made in chambers at Blantyre this 20th May, 2022. M. A. Tembo X JUDGE 5