Robray Limited v Hasco Limited (Civil Cause 525 of 1993) [1993] MWHC 36 (24 August 1993)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NUMBER 525 OF 1993 BETWEEN: ROBRAY uM EMED: “he ele sete fe Goede ds w ew ew eg PLAINTIFF and HASCO To TMLTED Se gate Se tod a ee es eit Lae ie DEFENDANT Coram: D F MWAUNGULU, REGISTRAR Msiska, Counsel for the Plaintiff Gonaulinji, Counsel for the Defendant O- RD: ER This-is an “application “by Haseo Cash -"N" Carry,;* a Eixum, to set aside a judgment in default of notice of intention to defend. The application is suppoted by an affidavit sworn by Mr. Gonaulinji, legal practitioner for Hasco Cash 'N' fo auininy:. I should reproduce paragraph 10 of the affidavit because Lt. 18 the turning poimt of: my order of August 24 dismissing the application. "That I am further informed that Hasco Limited are entirely two different business organisations. The deféndant 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 to set aside this. judgment. The action was commenced against Hasco Limited, a Limited company, on -28th April, 1993. The judgment in default of notice of intention obtained on 28th May 1993 was against Hasco Limited. The warrant of execution was issued against Hasco Limited. Hasco Cash iN’ Carry a frim,- has no locus standi to set aside a judgment against a limited company. I have always understood the law to be that people with no locus standi cannot apply to set aside judgment under the now Order ~13,,> Rule.-9.. This is a general rule. Order 13, Rule 9, however, does not specify who can apply: ee ess "Without prejudice 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 eourts have allowed third parties to apply to avert substancial injustice: "Where substancial injustices would otherwise result, Ene — -Coure ys has, in - théeie 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 substancial injustice if the decree in question were allowed to stand, and where the application for relief has been promptly made." (per Parker, L. J. in The Bolivar -(1916)2 Ac, -203, 203). fhe locus standi will be established where oa third party proves (‘an interest in the judgment being set aside (Segewick, Cel ling. « “Ces * ge! Rossia Insurance Company (1926)1. K. Bil) -effiemed Sn the House of, Lords sub nom. Employers Liability Assessment Corp. vs. Sedgwick Collins & Compeny. (1927) A.c. 95. In this Case it is difficult te ascertain the interest of Hasco Cash 'N' Carry. Mr. Gonaulinji, in the course of the argument, alluded to the fact that a Sherif? 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 in 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 seized the wrong goods. The way to proceed would be for Hasco Cash 'N' Carry to put a notice of claim to the goods to the sheriff so that the sheriff can interplead. Hasco Cash 'N' Carry have no interest in 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 the defendant, Hasco Limited, with the latters leave, or the plaintize and defendant should have been parties to the application and the applicant ask for leave to intervene.tIn Morin vs. Ashbridge & Martin (E98 Asie) eA om Ro, 231-233; 2S Wilfred Greene, Uc Bo. eats af. - 3 - "Cathwaite had no locus standi at all to make the application, and it ought to have been dealt with accordingly. If the solicitor for Martin had thought that, for “some -reason, OF other, ~Ssome 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. Tnhstead 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 otner points raised in the summons. I dismissed the application to set aside with costs. Made in chambers this 24th day of August 1993. os D «x. D F Mwa ulu REGISTRAR OF/ THE/ HIGH COURT Se