IN
THE HIGH COURT OF MALAWI

LILONGWE
DISTRICT REGISTRY

CIVIL
CASE 610 OF 2006

BETWEEN:

MAKHANGA
SACCO……………………..………………PLAINTIFF

AND

GEORGE B. MAKUMBA……………….…….…………DEFENDANT

CORAM: CHOMBO,
J

Mvalo, Counsel for
the Plaintiff

Salima,
Counsel for the Defendant

Chulu, Court
Interpreter

R U L I N G

This
is an appeal from the ruling of the Assistant Registrar on a hearing
of an application to set aside judgment. The application,
was by way
of rehearing.

Four
grounds of appeal were submitted by the plaintiff as follows:

1. 
   The learned
   Assistant Registrar failed to properly consider the principles
   required to be taken into account on such an application
   in order to
   properly exercise the discretion to set aside a regular default
   judgment.

   
   

2. 
   The learned
   Assistant Registrars’ decision that he only needed to consider the
   affidavit in support of the application and not
   look at the
   affidavit in opposition was tantamount to denying the plaintiff the
   right to be heard on an interparte application.

   
   

3. 
   If on an
   application to set aside a default judgment the plaintiff’s views
   are not necessary then why is this kind of application
   required to
   be made by interparties summons?

   
   

4. 
   By ignoring the
   plaintiff’s affidavit in opposition the learned Assistant
   Registrar denied himself the opportunity to properly
   consider
   whether the defendant disclosed a defence of merits in view of the
   matters contained in the affidavit in opposition?
   
   

   
   

The situation that
necessitated this application arose from a decision of the Assistant
Registrar on an order to set aside a default
judgment without
considering the affidavit in opposition filed by the plaintiff. The
question to consider before court is whether
or not on an application
to set aside a default judgment the plaintiff can file an affidavit
in opposition which court ought to
take into consideration. In order
to deal with these issues it will be necessary to quote the relevant
portions of the law verbatim.

O.13/9/5 of the
RSC (1995 ed) p. 140 it is provided on the last paragraph that

“On
the application to set aside a default judgment the major
consideration is whether the defendant has disclosed a defence on
the merits,
and this transcends any reason 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.) The
fact that he has told lies in seeking to explain the delay, however,
may affect his credibility, and may therefore be relevant
to the
credibility of his defence and the way in which the court should
exercise its
discretion”.
[underlining supplied for emphasis]

It was held by the
learned Assistant Registrar that in an application to set aside
judgment it is superfluous for the plaintiff
to file an affidavit in
opposition. I have gone through O. 13, r.9 and do not find any
portion that directly stops the plaintiff
from opposing such an
application. However there is no direct reference either to the
plaintiff filing an affidavit in opposition.

However,
the rationale in Mussa
v Chawawa and another
15MLR 329 at p. 330 for courts not allowing “the plaintiff to file
an affidavit in opposition to the application” is that:

“To allow
affidavits in answer would be tantamount to trying the case on
affidavits without the opportunity of witness or evidence
before the
court without cross-examination. Only the defendant’s affidavit,
therefore will be considered.”

It
will therefore be incumbent upon the plaintiff to bring to the
attention of the court about any alleged lies and relevant matters

during the substantive hearing. This will then allow the court to
place the correct credibility on the defence when exercising
the
discretion as provided for in O. 13/9/5.

I
had occasion to ponder the submissions of the plaintiff that the
practice does seem to contradict the principles of natural justice.

On reflection, however I am fully convinced, with reasons given in
Mussa
v Chawawa and another
(supra) that indeed if the plaintiff was allowed to enter an
affidavit in opposition the matter would be decided on affidavit
evidence which would compromise justice.

It
was further held in Mussa
v Chawawa and another
that:

“The
practice is that defendant’s affidavit should raise a defence on
the merits. If the affidavit is deficient, the defendant
can put a
supplementary affidavit (Kamchunjulu
v Magaleta
(1971-72) 6 ALR (Mal) 403)”.

It would seem, from O.13/9/4 that the purpose is
to allow the defendant put in a defence

“The
discretionary power to set aside a default judgment which has been
entered regularly
not lay down rigid rules which deprive it of jurisdiction.
The purpose of the discretionary power is to avoid the injustice
which may be caused if judgment follows automatically on default.

The
primary consideration in exercising the discretion is whether the
defendant has merits to which the court should pay heed not
as a rule
of law but as a matter of common sense,
there is no point in setting aside a judgment if the defendant has no
defence, and because, if the defendant can show merits,
the court
will not prima facie desire to let a judgment pass on which there has
been no proper adjudication. [Underlining
supplied for emphasis]

What
is considered to be a meritious defence is neither here nor there and
depends on the exercise of “common sense” of the
judicial officer
before whom the matter is brought. Suffice to say however that the
spirit of the provision is not to so close
the door as to deny the
defendant to put in a defence and allow the court to consider the
grounds of defence along side the allegations
of the plaintiff.

The
defendant did put in a defence in which he states how monies have
been deducted from his salary to liquidate the said debt.
An appeal
was allowed in the case of Allen
v Taylor
[1992] P.I.Q.R. 255 when the court of Appeal held that:

“……………..a
judge had misdirected himself by giving too little weight to an
assertion of a defendant on merits and too much to
conduct.” [Underlining supplied]

It would seem therefore that it does not have to
be a defence that is fool-proof on all fours.

The fact that an
application to set aside a judgment has been allowed does not or is
not, in itself, an indication that the court
has accepted the
evidence of the defendant wholesale. It is only to allow the
defendant to state his evidence on record and allow
cross-examination
to take place; and thus assist the court to evaluate the evidence for
what it is worth.

I
believe that I have gone to great lengths to elaborate the position,
which leads me to the conclusion that the plaintiff’s
application
must be disallowed in its entirety. I therefore dismiss the
application with costs.

Made
in Chambers this 6^th
October 2006.

E.J. Chombo

JUDGE