IN THE HIGH COURT OF MALAWI
LILONGWE DISTRICT REGISTRY
CIVIL CAUSE No.315 OF 2005
BETWEEN
PATRICK KHUZWAYO JERE ... . .. PLAINTIFF
AND
NATIONAL BANK OF MALAWI . . DEFENDNAT
Coram: T.R. Ligowe : Assistant Registrar
Nankhuni : Counsel for the plaintiff
Kalanda : Counsel for the Defendant
Baziliyo : Court Clerk Interpreter
RULING
The plaintiff entered a default judgment against the defendant. The defendant has applied to set the judgment aside under Oder 13 rule 19 of the Rules of the Supreme Court.
Under 0rder 13 rule 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 Evans 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 coercive power where that has only been obtained by a failure to follow any of the rules of procedure.
Where the default judgment is regular as the situation in the present case 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 merits (Farden v Richter (1889) 23 9.B.D. 124). Thus 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 Lloyds 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.
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.
I need to apply those principles to the affidavit in support of the present application vis a vis the statement of claim.
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 defendants 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 plaintiffs affidavit in opposition would be tantamount to trying the matter on affidavit evidence. So I will disregard the affidavit in opposition in this matter.
In his statement of claim the plaintiff avers that the defendant advertised in the local press for the sale of Chifungwe Estate situate within Chipoza village, 12 Km from Kasungu Mchinji road, extending approximately 52.8 hectares of leasehold land with improvements comprising a managers residence of 5 bedrooms. The plaintiff successfully bid for the land and paid K200 000 the purchase price. He also paid K20 504, costs for the transfer of the property to the plaintiff. The plaintiff avers he was influenced by the size of the estate and its improvements to bid for it, but in breach of the sale agreement, it has now transpired that the estate is in fact less than 5 hectares. He alleges the defendant recklessly misrepresented the size of the estate. He claims the losses he has suffered as a result thereof. K220 504 the purchase rice, K60 000 lost savings on rentals as he had intended to move into the managers house on the land, K2 237 520 loss of profit from the maize farming business he had planned for the said property in December 2003, Interest on the purchase price at the current bank lending rate, collection costs to the tune of K251 802.40 and government surtax to the tune of K44 065.42.
In his affidavit in support the defendant denies to have sold the plaintiff 5 hectares of land instead of 52.8 hectares. The defendant denies being liable for the loss alleged because the plaintiff as a purchaser was under a duty to verify the size of the property before purchasing it. He relies on the rule of caveat emptor. He further contends the plaintiff is estopped from terminating the sale agreement a year having passed from the date of purchasing the property. A draft defence has been exhibited to the affidavit in support.
This court has the discretion to set aside the default judgment herein. I find the affidavit in support disclosing a defence on the merits and as such I exercise my discretion by setting aside the default judgment in this case. The application succeeds. Costs will be in the cause.
Made in chambers this day of November 2005.
T.R.Ligowe
ASSISTANT REGISTRAR