Phiri & Ors. v July & Anor. (Civil Cause 47 of 2004)  MWHC 111 (31 October 2005);
IN THE HIGH COURT OF MALAWI
LILONGWE DISRICT REGISTRY
CIVIL CAUSE NO. 47 OF 2004
GEORGE KAMUNDI PHIRI
GIFT CHIMWEMWE HARA
AMON MWALIMU NYIRENDA
MRS. R. JULY
CORAM : T.R.
Ligowe : Assistant Registrar
: Counsel for the Plaintiff
: Court Clerk
This is the defendants
application to set aside a default judgment the plaintiffs obtained
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
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
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  2 Lloyds Rep. 221, CA.
From that case the following propositions may be derived:
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.
If proceedings are
deliberately ignored this conduct, although not amounting to an
estoppel at law, must be considered in justice
exercising the courts discretion to set aside.
The Court of Appeal in Allen
v. Taylor  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
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
essential to form a view. The court held it enough that certain
exculpatory facts could well be established. It is submitted
the Rules of the Supreme Court 1999, practice note 13/9/18 that this
is not easily reconcilable with the robust approach of
Saudi Eagle and
is a dilution thereof. The preferred view is that unless potentially
credible affidavit evidence demonstrates a real likelihood
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 2nd
defendant is the Administrator of the estate of Duncan Esau July
(deceased) who died on 4th
July 1997 at Nguludi Mission Hospital in Chiradzulu. The plaintiffs
have been running their school on plot No.8/989at Biwi Township
Lilongwe, which plot forms part of the deceased estate. The
plaintiffs are willfully refusing to pay rentals for their use of
plot in spite of several reminders to pay. The plaintiffs were
uncooperative and refused to leave the plot upon the defendants
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
Made in chambers this
day of November 2005.