Nikawane Enterprises Limited v Mhoni (Civil Cause 329 of 1990) [1991] MWHC 22 (1 March 1991)

Uf 2 a—-f79) \ 4 iN THE HIGH COURT OF MALASIL PRINCLPAL REGISTRY CIVIL CAUSE NUMBER 329 OF 1990 Bitwieenms 4 LUBRARY ‘ a NIXAWANE ENTERPRISUS LID. oC am ee cseseve PLAINTIFE ana RF fhunl eevee eneeoeeaeeewonvueveew seve sedbaves DEFENDANT Coram: 0 & Mwaungulu, Acting Registrar Nyirenda, of Counsel for the vefendanct/Applicant Ngtombe, of Counsel for the Plainsif£/Respondent RULING Un the 27th of August 1990 I set aside a judgment in default of notice of intention to defend entered on the 28th of May 1!90. i reserved ruling. The plaintiff took Gut the weit on this action on the 23rd of April 1996. The endorsement on the writ is: “the plaintiff's claim is for R34,636.01, profits, interest end damages as particularised in the statement Of claim annexed hereto and costs of the action.” there are problems with punctuation here. At is not clear whether the 34,638.01 refers to profits, interest and damayes or whether it is a distinct claim from protits, interest and damages. AS &@ matter of course such defects can be cured in the statement of claim, The statement of claim here shades more clouds than light. Paragraph 2 which covers the amount reads: "The plaintiff secured through the defendant an indent numbered NE//R1018/87 £Erom Peoples Trading Centre. Limlted Agency vivision for Goom worth R34,6608 from & supplier in South Africa known as Robectson (Pty) Limitea." = OF I QO O C iL -_ There is variance with the amount claimed in the writ. In paragraph 5, where the relief is claimed, we have the following: "The plaintifx therefore claims from the defendant and prays for an order that: Acs wus (a) the degentiant do deciare to the plaintiff the total landed costs of the goods; (b) the customer to whom the defendant had sold the ¢oous; {c) the profit so getermined to attract interest at the rate of L8& from the aate of sale; (3) the price at which the defendant sold the goods; and (e) damayes Hor bseach of contract." Again tnere are punctuation and syntanical problens,. The bouy of the paragraph doea not match wich the itemisation of the reliets sought. fhe first point taken by Mx. Nyirenda is that the judgment is irregular in that it is based on a claim for R34,638.01 indorsed on the writ which claim is abancened because it is not repeated in the statement of claim. Thece is merit in tee acgument in every Way. 1 have referred to the uncertainty causec by wrong punctuation but, even giving the interpretation most favourable to the plaintiff, the claim for the sum is neither explained or repeatea in the stapement of cleam. & claim in the writ not repeated in tne scatement of cleim is treated ag abandoned (Cargil vs. Bower (1678)10 Ch.9.502; Lewis vs. Durnford (1907)2¢ Lele. G4, G5. fhe second point taken by Mr. Nyixrenda is that leave of the couct was to be had under Order 13, Rule 6 of che Rules of the Supreme Court. This ergument is only tenable if the claim for a declaration, which in my opinion is what is claimed in paragraph 5 of the statement otf claim, was claimed in the writ. Apart from that a judgment in default of netice of intention to defend cannot be had where the action is for mixed claims (Order 13, Rule 6). It is not correct that on the facts of this case leave should have been obtained under Order 13, Rule 6 of the Rules of the supreme Court. Lf there are other claims as is here and there is no notice of intention to defend the plaintiff is supposed to proceed as if there was such notice in which case he must serve a statement of claim if he hes not already done so. Lf defence is net served the plaintiff must take out a motion or sunmons for judgment under Order LY, Rule 7. So the judgment here would have been irregular pecause there waa no motion or swnmons for judgment not necause leeve to enter judgment was not obtained. The judgment entered here was not for a declaration but on & jfaistaken view of a liquidated claim. Tne claim for a declaration was not in the writ and no judgment could he obtained on it. it is superflous to decide on the point Z/ecece because, if there was a notice cf antention to defena, the defendant would have applied to have that aspect struck off the pleadings. in view of the conclusion I have drawn on the matter 1 uo not think i should Labour on the third point. suffice to say that there is merit in the affidavit. Costs to the defendant. { \ f u 3 Kade in Chanbers this day of <= oF #CTING REGISTRAR O Higa couRT