IN THE HIGH COURT OF MALAWI

LILONGWE DISTRICT REGISTRY

CIVIL CAUSE No.222 OF 2004

BETWEEN

L. B.
LOKOSANG
……………………………. …………...….………..
PLAINTIFF

AND

NATIONAL
INSURANCE COMPANY LTD …………. ………….. DEFENDNAT

Coram: T.R.
Ligowe
: Assistant Registrar

Chilenga

: Counsel for the plaintiff

________________________________________________________________________

RULING

This is the defendant’s
application to set aside a default judgment the plaintiff obtained
upon the defendant’s failure to give
notice of intention to defend
on the ground that the default judgment is irregular and that the
defendant has a defence on merits
so that the plaintiff has to pay
sheriff fees and expenses in terms of the Sheriff Act. The
application is supported by an affidavit
sworn by Marshal Chilenga,
Counsel for the defendant which deposes that the defendant has not
received the writ of summons and
thus the judgment is irregular. The
affidavit further deposes that the within action was dismissed by the
then District Registrar
Kamanga in Civil Cause No 40 of 2001. The
ruling is exhibited as 3MC1. The affidavit also exhibits a defence
marked MC2 which inter
alia avers that the
defendant will contend at trial that the court having dismissed the
claim in Civil Cause No. 40 of 2001 this action
becomes frivolous and
vexatious and is statute barred in terms of section 148 of the Road
Traffic Act.

Let us first see if the default
judgment is irregular. The following requirements must always be
fulfilled before a judgment is
entered in default of notice of
intention to defend.

1. 
   That the writ has been duly
   served.

   
   

2. 
   That the time for
   acknowledgment of service has expired with no such acknowledgment
   having been returned: or
   

   
   

3. 
   That the acknowledgment of
   service has been returned but it contains a statement that the
   defendant does not intend to contest
   the proceedings;

   
   

4. 
   That there is due proof of
   service of the writ, either by filing an affidavit of service or
   producing the defendant’s solicitor’s
   indorsement of acceptance
   of service.

   
   

5. 
   That in a claim for recovery
   of land, no relief is claimed of a nature specified in O.88 relating
   to mortgage transactions.

   
   

The default judgment herein was
entered upon the plaintiff complying with the requirements stated
above. There is an affidavit of
service of the writ by post. The writ
was dully served. However the defendant states he did not receive the
writ. I would not say
that the judgment is irregular as the plaintiff
complied with all the requirements. An irregularity arises where a
party to a case
fails to comply with requirements of the rules of
procedure. O.2 r.1
of the RSC. The
defendant has to pay sheriff fees and expenses within 7 days from the
date hereof.

I am now left with the question
whether the affidavit discloses a defence on the merits. The
plaintiff’s claim is basically for
the sum of K38 569 in respect of
a motor vehicle accident claim arising under a third party claim for
damages to the plaintiff’s
motor vehicle registration number NU
848. I find the defence disclosed in the affidavit in support of the
present application meritorious
and therefore exercise the discretion
of the court in setting aside the default judgment. Costs will be in
the cause.

Made in Chambers this 20^th
day of January 2006.

T.R. Ligowe

ASSISTANT REGISTRAR