Mapemba V Lilongwe City Council (Civil Cause 1 of 1979) [1980] MWHC 6 (11 February 1980)

IN THE HIGH COURT OF MALAWI AT BLANTYRE CIVIL CAUSE NO, 1 OF 1979 ETWEEN: a ieee alte PIN PEMBA s wcoleve oe! o) ols aca iaie rele acd Shave 86 6.8 aioli’ «ale eidlere-eeatde » HERE LLANY ~ and = LILONGWE CLYY COUNC Tigis cutee secelg ace Given aoe W ae-o-l eo pelele ss RES DUNDENT Coram: Villiera, J. For the Appellants Mutawawire of Counsel For the Respondent: Munthali of Counsel Official Interpreter: Kadyakale RULING This is an appeal against an order of the Resident Megistrate at Lilongwe dismissing the appellant's application to set aside a judgment entered against him in default of defenee on the 12th June, 197%. By &@ summons dated the 29th May 1979, the respondent claimed from the appellant a sum of K500, being arrears of rent for the period April 1977 to March 1979, in respect of a canteen on Plot Na. 2240 in the City of Lilongwe, particulars of the said arrears of rent having already been supplied toa the appellant. The appcliant failed to file any defence within the time required ta file such a dofenec, and accordingly judgmont in default of defence was signed an the 12th June 1979, On the 25th June 1979, the appellant filed an application to set aside the judgment and attached an affidauit in which he deposed that he had a good defence to the claim but that he had been unable to file such a defence beacause uf illness. Counsal Por the appellant submits that the learned Resident Magistrate erred in law in not allowing the appellant’s application under thesc circumstancos since the @ppellant had showed clearly why he had not been able to filo a defence, Counsel far the respondent, on the other hand, submits thot the affidavit sworn by the appellant did not contain any grounds of defence which would enable the court to consider the merits of the application and that therefore the learned Resident Magistrate properly rejected the application, He has reforred mo to Order 10, rule 3(2) of the Subordinate Courts Rules which is in the Following terms: "(2) The affidavit shell state that the defendant hes a good defence to the plaintiff's claim and shall, subject to subrule (3) indicate clearly the grounds of his defence," Bhd Tt was hold in the case of Farden vs, Richter (1889) 23 G.8. 124, that if a judgment is regular thon it is an almost inflcxiblo rule that there must be an affidavit of merits, i.e. an affidavit stating facts showing a defence on the merits, Tt was further held in that case that an application which is not supported by such an affidavit ought not to be granted except for some very sufficient reason, The appellant's affidavit did not state clearly any grounds of the defence that the appellant had in mind. The affidavit was therefore inadequate, The matter however did not end with the inadequate affidavit, On the 27th July 1979, the appellant gave evidence on oath in open court and stated that he intended to file a defence and that he wanted to put in a counterclaim. He did not enlarge on the nature of the counterclaim but stated that he had paid five instalments, Although the appellant's ovidenee of the nature of his defence is rather vague, it scems to mo that he may be saying that he does not owe as much as the respondent says he does. I am inclined to believe that the appellant may have e defence of some sort and for this reason will allow the appeal. The judgment entered an the 12th June 1979, is set aside on the condition that the appellant will bear responsibility for all wasted costs in any event. The defence, if any, to be filed within ten days from today's date, Costs for today's appearance Por the respondent. Made in Chambers this llth day of February 1980, at Blantyre. SENSO ALS 3. 8. VILLIERA JUDGE