Nel v Ukzed Cars Limited (HPC 53 of 2014) [2015] ZMHC 15 (27 April 2015)

, IN THE HIGH COURT FOR ZAMBIA 2014/HPC/0053 AT THE COMMERCIAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: PETER JOHN NEL AND UKZED CARS LIMITED PLAINTIFF DEFENDANT BEFORE HON. MADAM JUSTICE PRISCA MA TIMBA NY AMBE, SC AT LUSAKA IN CHAMBERS For the Plaintiff: For the Defendant: Mr. Alfred Roberts Alfred Roberts & Co. Mr. Oscar Mudenda Milner Katolo & Associates RULING - List of authorities referred to: 1. Stanley Mwambazi V Morester Farms Limited (1997) ZR 108 This is the Defendant's application to set aside Judgment in Default of Appearance dated 18th February, 2014 by the Hon. Deputy Registrar and Stay of Execution of the same. I have read the affidavits, lists of authorities as well as skelton arguments filed herein by both parties. I note in particular paragraph 6 of the Affidavit in Support of Ex parte Summons for an Order of Stay of Execution deposed to by one MINEZ McKILLIGAN to the effect that at the time the Writ of Summons and Statement of Claim were served on his Advocates he was frantically searching for his father who was missing and in that panic situation he was unable to instruct his Advocates correctly on the Defendant's Defence and actually sent the same to a wrong e-mail address. He has requested the Court to grant the Defendant an opportunity to be heard and that he has a defence on the merits to the claim. Having perused documents filed herein, I believe this application is bona fide. As stated in the case of Stanley Mwambazi V MOlester Farms Limited (1997) ZR 108:- "It is the practice in dealing with bona fide interlocutory applications for Courts to allow triable issues to come to trial despite the default of the parties, where a party is in default he may be ordered to pay costs, but it is not in the interest of justice to deny him the right to have his case heard". (my emphasis) With the above in view the Defendant's application to set aside the Default Judgment and Stay of Execution of the said Judgment is hereby granted. R2 •• • I make no order as to costs. Matter will come up for Scheduling Conference on 13th May, 2014 at 16:00 hours. Dated this ..?-:!6.!~..day Of ~ •••••••••••••••••••••••••••••••••• Prisca M. Nyambe, SC JUDGE R3