Court name
High Court General Division
Case number
Civil Cause 582 of 2003

GD Liwimbi and Partners v Gwengwe (Civil Cause 582 of 2003) [2005] MWHC 84 (31 August 2005);

Law report citations
Media neutral citation
[2005] MWHC 84



CIVIL CAUSE No. 582 OF 2003


G.D. LIWIMBI AND PARTNERS…………………………………………..


A. GWENGWE ……………………………………………………………

Coram: Ligowe: Assistant Registrar

Kalasa : Counsel for the


This is the defendant’s application to set aside the default
judgment the plaintiff obtained in this matter. The plaintiff’s

claim was for the sum of K15 800 being legal fees for conduct of
civil cause No. 73 of 2001 in the Industrial Relations Court the

particulars whereof the defendant was aware and costs of the action.
The application is supported by an affidavit which deposes
that the
defendant was never served personally with the writ of summons; that
the defendant has a defence on merits in that he
did not give any
instructions to the plaintiff to provide any services to him and
therefore denies liability. There is an affidavit
in opposition by
the plaintiff. However the practice on an application to set aside a
default judgment is that the court only has
to refer to the
defendant’s affidavit in support to see if it discloses a defence
on merits. It was held in Mussa v. Chawawa and another [1992]
15 MLR 329
that to consider the plaintiff’s affidavit in
opposition would be tantamount to trying the matter on affidavit
evidence. So I
will disregard the affidavit in opposition in this

Under 0 13 r 19, R.S.C. the court is given
the discretion to set aside a default judgment on such terms as it
thinks just. Lord
Atkin in
V Bartlam [1937] A.C. 473 at 480

clearly stated the principle behind it all. He said,

“The principle obviously is that unless
and until the court has pronounced judgment upon the merits or by
consent, it is to have
the power to revoke the expression of its
exercise power where that has only been obtained by a failure to
follow any of the rules
of procedure.”

Where the default judgment is regular, it
is an almost inflexible rule that there must be an affidavit of
merits, i.e. an affidavit
stating facts showing a defence on the
(Farden v Richter
(1889) 23 9.B.D. 124).
the major consideration 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 even if the explanation given
by him is false.
(Vann V
Awford (1986) 83 L.S. Gaz 1725; The Times, April 23 1986, C.A.)

It was held in Alpine
Bulk Transport Co. Inc V Saudi Eagle Shipping Co. Inc., The Saudi
Eagle [1986] 2 Lloyd’s Rep. 221.

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

Where the judgment is irregular, the
irregularity must be specified in the summons. See Order 2 Rule 2
R.S.C. It has not however
been clearly specified in the summons
whether there is any irregularity with respect to the judgment in
question. Apparently it
is a regular judgment. I need to apply the
principles on setting aside a regular judgment to the affidavit in
support of the present
the statement of claim.

The basic defence is that the defendant did
not give any instructions to the plaintiff to provide any services to
him. That in my judgment is a meritorious defence in the
discussed above. The judgment is therefore set aside. Costs will be
in the cause.

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

T.R. Ligowe