Phiri and Others v July and Another (Civil Cause No. 47 of 2004) ((Civil Cause No. 47 of 2004)) [2005] MWHC 111 (01 November 2005);

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IN THE HIGH COURT OF MALAWI

LILONGWE DISRICT REGISTRY

CIVIL CAUSE NO. 47 OF 2004



BETWEEN

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

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

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

AND

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

ADMINISTRATOR GENERAL ………………………………... 2ND 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 16th 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 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 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