IN THE HIGH COURT OF MALAWI
LILONGWE DISTRICT REGISTRY
CIVIL CAUSE No.172 OF 2004
BETWEEN
HARLOD CHIWAULA ... . PLAINTIFF
AND
REGINA VIOLET CHAKANZA . DEFENDNAT
Coram: T.R. Ligowe : Assistant Registrar
Kadzakumanja : Counsel for the plaintiff
Mzunga : Counsel for the Defendant
Baziliyo : Court Clerk Interpreter
RULING
The plaintiff entered a default judgment against the defendant on 23rd April 2004. 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 and supplementary 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 he is the administrator for the estate of Hassan Ibada Chiwaula (deceased) who owned plot No. MT 527 situated at Matawale in Zomba. The defendant was at the time of the demise of the deceased a tenant in the said house. The deceaseds relatives unlawfully sold the house to the defendant at K200 000. That the sale was unlawful because the relatives did not have the authority whatsoever to deal in the property. The alleged sale is null and void and the plaintiff is entitled to have possession of the house as administrator. He is ready and willing to refund the purchase price to the defendant less rentals the plaintiff could have earned had the plot not been sold. The plaintiff therefore claims possession of the plot, damages for loss of use of the plot or an account of rentals he could have received had the house been let out, and any other relief the court may deem fit, and costs of the action.
In the affidavit in support counsel for the defendant deposes inter alia that the defendant agreed with Mr Hassan Ibada Chiwaula that he should sell her the house on plot No. MT527 Matawale, Zomba for K200 000 (Paragraph 3). On or about 30th October 2005 the defendant paid K35 000 leaving a balance of K165 000 which transactions were recorded and signed for in a notebook until the whole balance was discharged in January 1999. A copy thereof is exhibited and marked WLM2 (Paragraph 4). Before change of ownership was effected Mr. Hassan Ibada Chiwaula died (Paragraph 5). That all monetary transactions were completed and signed for by the deceased before he died as it appears in the recordings marked as WLM1 (sic) (Paragraph 14). The supplementary affidavit deposes among other things that the sale agreement was made before the demise of the deceased. That the house was co-owned with his wife who was fully aware of the transactions and had the constitutional right to complete the sale agreement by receiving money from the defendant.
Counsel for the plaintiff contends that the sale agreement was made almost four months after the death of the deceased. He refers to WLM2 and the letters of administration exhibited to the defendants affidavit in support. WLM2 shows the house was sold on 17th October 1998 and a deposit of K10 000 was received by Mrs. L. Mponda. The letters of administration show that the deceased died on 8th June 1998.
I am not quite impressed with the defendants affidavits in support. An affidavit in support of an application to set aside a regular default judgment must state facts showing a defence on the merits. It is facts which must be shown and not the evidence for proving those facts. The affidavit in this case with due respect does not intelligibly put forward the facts to show the merits of the defence. It is confusing. It exhibits documents which on being considered may make this court be seen as in effect trying the matter on affidavit evidence. How do I find the fact that the sale agreement was made between the defendant and the deceased before he died meritorious in view of WLM2 and the letters of administration? How do I find the fact that the deceaseds wife was aware of the transactions and completed the sale agreement by receiving money from the defendant meritorious when I have already been told that all monetary transactions were completed and signed for by the deceased before he died?
I find the affidavit and supplementary affidavit in support of this application wanting of a defence of merits. I find no real prospect of success in it and no degree of conviction.
The defendants application fails and is dismissed with costs.
Made in Chambers this day of October 2005.
T.R. Ligowe
ASSISTANT REGISTRAR