G.D. Liwimbi and Partners v Gwengwe (Civil Cause No. 582 of 2003) ((Civil Cause No. 582 of 2003)) [2005] MWHC 84 (01 September 2005);




CIVIL CAUSE No. 582 OF 2003




A. GWENGWE …………………………………………………………… DEFENDNAT

Coram: Ligowe: Assistant Registrar

Kalasa : Counsel for the defendant


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 matter.

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 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 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 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 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 application vis avis 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 sence 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