Robray Ltd v Hasco Ltd (Civil Cause 525 of 1993) [1993] MWHCCiv 50 (24 August 1993)

------BETWEEN: Coram: IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NUMBER 525 OF 1993 ROBRAY LIMITED and HASCO LIMITED D F MWAUNGULU, REGISTRAR MsJska, Counsel for the Plaintiff Gonauljnji, Counsel for the Defendant 0 R D E R PLAINTIFF LJEFENDANT This is an application by Basco Cash 'N' Carry, a firm, to set aside a judgment 1n default of not ice of intention to defend. The applir:abon is suppoted by an affidavit sworn by Mr. Gonaul i nj i, legal practi t.ioner for Basco Cash 'N' Carry. I should reproduce paragraph 10 of the affidavit because .it is the turning point of my order of August. 24 dismissing the application. "That I am further informed that Basco Limited are entirely two different. business organisations. The defendant intends to contend at the trial that Hasco Cash 'N' Carry is not a Limited company." This deposition immediately raises the locus standi of Hasco Cash 'N' Carry to apply Lo sc t aside this judgment. The action was commenced against company, on 28th Apr.i.l, 1993. notice of intent.ion obtained on Basco Limited, a Limited The judgment in default of 28th May 1993 was against Hasco Limited. The warrant of execution was issued against Hasco Limited. Hasco Ca sh 'N' Carry a fr im, has no locus standi to set aside a judgment against a limited company. I have always locus s tan di now Order 13, understood the cannot apply to Rule 9. This law to be that people with no set aside judgment under the is a general rule. Order 13, Rule 9, however, docs not specify who can apply: 2/ ... -2 -"Without prejudir.e to Rule 7 (3) and (4) the court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this Order." In practice courts have allowed third parties to apply to avert substancial injustice: (per The "Where subs tanc ial injustices would otherwise result, the court has, in their Lordship's opinion, an inherent power to set aside its own judgment of condemnation so as to let in bona fide claims by parties who have not in fact been heard, and who have had no opportunity of appearing. This power is discretionary, and should not be exercised except where there would be substanr.ial injustice if the decree in question were al lowed to stand, and where the application for relief has been promptly made." Parker, L. J. locus standi 1 n will The be proves an interest in (Sedgwick, Collins & Co. Bolivar ( 1916 ) 2 A. C . 2 0 3, 2 0 S) . established where a third party the judgment being set aside vs. Rossia Insurance Company (1926)1 K. B.l, affirmed in the House of Lords sub nom. Employers Liability Assessment Corp. vs. Sedgwick Collins & Company (1927) A. C. 95. In this case it is difficult to ascertain the interest of Hasco Cash 'N' Carry. Mr. Gonaulinji, in the course of the argument, alluded to the fact that a Sher if f Officer has actually seized the property of Hasco Cash 'N' Carry instead of Hasco Limited. The way to proceed is not to set aside the default judgment against Hasco Limited which 1n every way cannot be faulted. This would be prejudicial to the plaintiff who, for all intents and purposes, has a valid judgment against Hasco Limited except that a sheriff officer sci zed the wrong goods. The way to proceed would be for Hasco Cash 'N' Carry t.o put a notice of claim to the goods to t h c sh c r .i f f so Ll 1 ,1 L t· h c s h c r j f f c a n _i n Le r pl cad . fl a s co Cash 'N' Carry have no int.crest 1.n the action between the plaintiff and Hasco Limited save that the goods Hasco Cash have 'N'carry been wrongly seized by the sheriff. Apart from this the application has not been made properly. If Hasco Cash 'N' Carry had an interest, the application should have been made in the name of thC:' defendant, Hasc:o Limited, with the latters leave, or the plaintiff and defendant should have been parties to the application and the applicant ask for leave to intervene. In Murfin vs. Ashbridge & Martin (1941), All E. R. 231, 233, Sir Wilfred Greene, M. R., said: 3/ .... -3 -"Cathwaitc had no locus st.andi at all to make the application, and it ought. t.o have been dealt with accordingly. If the solicitor for Martin had thought that, for some reason or other, some useful purpose would be served by endeavouring to get that order for substituted service set aside, it was in Martin's name that such application ought to have been made. Instead of that it was made in the name of a person who had no connection with this action whatsoever for any relevant purposes of procedure." For this reason I found it unnecessary to consider the other points raised in the summons. I dismissed the application to set aside with costs. Made in chambers this 24th day of August 1993 . D F 'v I REGISTRAR 0 .. f:.. ulu HIGH COURT