IN THE HIGH COURT OF MALAWI

LILONGWE DISRICT REGISTRY

CIVIL CAUSE NO. 47 OF 2004

BETWEEN

GEORGE KAMUNDI PHIRI
………………………………………..1^ST
PLAINTIFF

GIFT CHIMWEMWE HARA
……………………………………… 2^ND
PLAINTIFF

AMON MWALIMU NYIRENDA
………………………………….. 3^RD
PLAINTIFF

AND

MRS. R. JULY
…………………………………………………… 1^ST
DEFENDANT

ADMINISTRATOR GENERAL
………………………………... 2^ND
DEFENDANT

CORAM : T.R.
Ligowe : Assistant Registrar

Makwinja
: Counsel for the Plaintiff

Baziliyo
: Court Clerk

RULING

This is the defendants’
application to set aside a default judgment the plaintiffs obtained
on 16^th
April 2004 in default of notice of intention to defend. It is
supported by an affidavit sworn by counsel for the defendant.

The plaintiffs claim herein is
for a declaration that it is unfair for the Administrator General and
Mrs. R. July to stop the plaintiffs
from running Good Hope Private
School, now known as Giant Step Private School, until the issue of
the plaintiffs’ property which
they put on the premises is
determined. They also claim damages for conversion and loss of
business, and costs. The judgment in
default adjudges the defendants
to pay damages for conversion and loss of business and costs of the
action.

In an application to set aside
a regular default judgment as the present one there is need for an
affidavit of merits. See Farden
v Richter (1889) 23 Q.B.D. 124.
The major consideration therefore is whether the defendant has
disclosed a defence on the merits, and this transcends any reasons

given by him for the delay in making the application. See Vann
v Awford (1986) 83 L. S. Gaz.1725; The Times, April 23 1986, C.A.
However if the delay is coupled with prejudice occasioned to the
plaintiff, the court may refuse to set aside the judgment. See
Harley
v Samson (1914) 30 T.L.R. 450.

The meaning of a meritorious
defence was discussed in Alpine
Bulk Transport Co. Inc. v. Saudi Eagle Shipping Co. Inc., The Saudi
Eagle [1986] 2 Lloyd’s Rep. 221, CA.
From that case the following propositions may be derived:

1. 
   It is not sufficient to show a
   merely “arguable” defence that would justify leave to defend
   under O.14; it must both have
   “a real prospect of success” and
   “carry some degree of conviction.” Thus the court must form a
   provisional view of the
   probable outcome of the action.

   
   

2. 
   If proceedings are
   deliberately ignored this conduct, although not amounting to an
   estoppel at law, must be considered “in justice”
   before
   exercising the court’s discretion to set aside.

   
   

The Court of Appeal in Allen
v. Taylor [1992] P.I.Q.R. 255
holding that a judge had misdirected himself by giving too little
weight to an assertion of a defendant on merits and too much
on
conduct, allowed an appeal following an analysis of the principles
emerging from The
Saudi Eagle. It
qualified the requirement to form “a provisional view of the
probable outcome” where assessment of the facts at a trial
is
essential to form a view. The court held it enough that certain
exculpatory facts “could well be established.” It is submitted
in
the Rules of the Supreme Court 1999, practice note 13/9/18 that this
is not easily reconcilable with the robust approach of
The
Saudi Eagle and
is a dilution thereof. The preferred view is that unless potentially
credible affidavit evidence demonstrates a real likelihood
that a
defendant will succeed on fact no “real prospect of success” is
shown and relief should be refused.

It is deposed in the affidavit
in support of this application that the 2^nd
defendant is the Administrator of the estate of Duncan Esau July
(deceased) who died on 4^th
July 1997 at Nguludi Mission Hospital in Chiradzulu. The plaintiffs
have been running their school on plot No.8/989at Biwi Township
in
Lilongwe, which plot forms part of the deceased estate. The
plaintiffs are willfully refusing to pay rentals for their use of
the
plot in spite of several reminders to pay. The plaintiffs were
uncooperative and refused to leave the plot upon the defendant’s

request to vacate the premises and pay all outstanding bills for
electricity and water.

These facts in my judgment
disclose a meritorious defence to the plaintiffs’ claim. I grant
the application. The judgment is set
aside. Costs will be in the
cause.

Made in chambers this …………
day of November 2005.

T.R. Ligowe

ASSISTANT REGISTRAR