Young v Kachulu & Anor. (Civil Cause 1182 of 1993) [1994] MWHCCiv 22 (4 February 1994)

MRS J ti TURQUAND YOUNG . . . . . . . . . . . . . . . . . . . . . . PLAINTIFF -AND- RICHARD KACHULU NATIONAL INSURANCE COMPANY LIMITED (MALE) . . . . . . . . . . . . . . . . . . . . . . lST DEFENDANT 2ND DEFENDANT CORJ\M: HWAUNGULU, REGISTRAR Chi z umila of counsel for the Plaintiff ..._.\ /\ L<-'-- ,..-13 an cl a o f c o u n s e 1 f o r the De f end ant ORDER the and first against the 17th of November, 1993. This is an application to set aside a judgement •in default of notice of intention to defend and defence defendant entered second The respectively on plaintiff owns a Ford Escort Saloon, registration number BG 2879. a peugeot 104, registration number BE 9028. The second defendant is an Insurance Company and insurer of the second defendant's car. On the 24th of Hay, 1990 the plaintiff's son was driving his father's car on - Thyolo road t ow ards Thyolo when there was an accident with the first the first defendant's car, driven at defendant. The first defendant owns the Limbe time by the On 14th September, 1993 the plaintiff took out this action claiming special and general damages for the damage to h is car. On 20th September, 1993 the first defendant lodged a notice of intention to def end. The second defendant did not. The first defendant, served with a statement of claim that accompanied the writ, did the 17th of November, 1993 the not serve defence. plaintiff obtained an interlocutory judgment in default of defence and notice of intention to defend against the first and second defendant, respectively. The plaintiff obtained an appointment to assess damages for the 22nd of December 1993. On 14th December, 1993 the defendants obtained an order ex parte to stary proceedings pending an application to set aside judgment. The application to set aside was made on the 8th of December, 1993 and heard on the 4th of January 1994. On - - it is in default because judgment was obtained judgment under order 13 rule 9, is looked at. In the affidavit in support of the application the defendants give reasons for their default and set out their defence. On the first point, the defendants depone that the defendants had abit of problems in finding out whether their client, the first defendant, was covered by them. They is a plausible and possible explanation given that the first defendant immediately acknowledged service and lodged a n-otice of intention to defend. Mr Chizurnila, appearing for the plaintiff, in argument wanted to raise facts to counter the assertion. On an application to set aside the defendants affidavit which It is not the court permissible to allow count.er facts because avoids at all costs at this stage to decide the case on affidavits. The practice of the courts has been not to allow an affidavits in opposition. Mr Chizumila further submitted, relying on Blantyre Merecantile Company -v International Refrigeration Services limited, Civil Cause number 5 of 1982, unreported, that a judgement in default may not be set aside in the absence of an explanation for If that case so decided, it is binding on the default. this court. On the other hand the practice under ord~r 13, rule 9 has been considered in Alpine Bulk Transport Co. the saudi Eagle [1986]2 Lloyds Rep. 221, 223, where many cases are reviewed. The paramount consideration is whether there is a defence on the merits and the court will look at several factors, including the defendants explanation for the delay, in exercising the wide discretion under the rule. This to me means, for example, if the court in exercise of its discretion is to set aside a judgement on ,terms, the defendant's explanation for the delay is That explanation is of no a serious consideration. judgement ought importance to the question whether the to be set aside, except a Otherwise judgement would be set aside even if there is no merit provided there is a reasonable explanation. Just as it judgement would not be right to refuse to set aside a where clearly there is merit because of a bad or rejected In Evans -v- Bartlam [1937] AC. Lord Atkin explanation. said: Inc -v- Saudi Shipping co. Inc, laches. for the One laid down "The courts, however, have for themselves rules to guide them in the normal exercise of their discretion. is that judgement was obtained regularly where there must be an affidavit of merits, meaning that the applicant must produce to the Court evidence that he has a prima facie defence. It was suggested in argument that there is another rule that the applicant must satisfy the Court and there is a reasonable explanation why judgement was allowed to go by default, such as mistake, accident, fraud or the like. - - the regard if any, in exercising think that any such rule exists, I do not for reason, though obviously allowing judgement and thereafter applying to set it aside is one of the matters to which the Court will have its discretion. If there were a rigid rule that no one could have a default judgement set aside who knew at the time and intended that there two rules should be a judgement signed, _wuold be deprived of most of their deprived of The principle most of obviously is that unless and until the Court has pronounced a judgement upon the merits or by conscent,it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedure." their efficacy. the As I have said before, the explanation of defendants is, in my The question, therefore, is whether the defendants affidavit raises merit. judgement possible and plausible. Much In my in every way Hr Chizumila raises a factt!al premise from paragraph 6 of the affidavit in support of the application. In in the defendants depone that the t~,o vehicles co 11 ided while exchanging directions. Mr Chizumila submits that this implies that there was a head on collision. He submits that this cannot be supported by the damage to his car. His car had no head lamps judgement, Mr Chizumila is reading too broken. much into an otherwise innocuous statement. To say that motor vehicles collided while changing directions is not necessarily head-on collision. think the defendants' defence must be looked at as a whole. Looked at that way it will be seen that the defendants, assert that the plaintiff is partly or wholy to blame. The defence lays down particulars of the plaintiffs negligence, total or contributory. I have decided before, following Burns -v- Kondel [ 1971] 1 Lloyds Rep 554- we do not have the report but the case is cited by the learned authors of the Supreme Court Practice 1991 at paragraph 13/9/5 - that a judgement will be set aside on showing a triable issue on contributory negligence. The affidavit here raises a defence on the merit. there was suggest to I that a He Mr Banda, appearing for raised a second defendants submits further ground. liability is only on proof of liability of the first defendant to the plaintiff. I had a bit of problems to appreciate the relevance of this ground given that the the first defendant's judgement in default of defence. liability was determined by the defendant, the There is a triable issue and the defendants ought to defend the action. The judgement of 17th November .! 1993 is set aside with costs. served in the next fourteen days. The defence should be - ·- !lade in Chambers this 4th Day of February 1994. i~gulu F THE HIGH COURT