IN THE HIGH COURT
OF MALAWI
PRINCIPAL REGISTRY
BETWEEN :
ABC COSMOS LTD ………………………………………………………….PLAINTIFF
AND
CIDA BUILDING CONTRACTORS…………………………………….DEFENDANT
CORAM : M.A.
TEMBO, THE ASSISTANT REGISTRAR
Banda,
Counsel for the Plaintiff
Dr
Mtambo, Counsel for the defendant
This is this courts’ order on the defendant’s application to set aside the default judgement herein on the ground that it had been entered for more than what was actually due or in the other words that it had been entered for too much.
The
plaintiff commenced the present action for K870,000.00 being balance due for
goods sold and delivered by the plaintiff to the defendant. The plaintiff also claimed interest on the
principal sum due at the current commercial
lending rate and 15% collection charges.
After the
failure of the defendant to give its notice of intention to contest the
plaintiffs’ claim the plaintiff entered judgment for the sum of K520,000.00
being balance on the purchase price of the goods sold and delivered, interest
on the sum of K520,000.00 at 42% per from October, 2000 until final payment and
collection charges at 15% of the total sum due.
Both the
plaintiff and the defendant filed an affidavit in support their contention.
The
affidavit in support defendant’s application was defective in that it did not
indicate when and where its deponent swore it.
And Mr Banda for the plaintiff asserted that fact asked this court to
ignore the defendant’s affidavit. In
response Dr Mtambo for the defendant referred to 0.41 r 4 RSC and submitted
that the defective affidavit could be used with the leave of this court. He actually sought leave to use that defective affidavit. Mr Banda for the plaintiff appeared to have abandoned his position
in argument as he never responded to Dr Mtambo’s submissions. And this court after. Considering that the defect in the affidavit
did not prefidice the plaintiff allows the defendant to use its affidavit in
terms of o.41 r 4 RSC. The law in
relation to judgments entered for too much has been properly stated by the
plaintiff namely, that a judgment for more than what is actually due at the
time judgment is entered is bad and will be set aside. See Hughes v
Justin [1894]
1Q.B 667.
The question is, What is a judgment entered for too much? This court conceives 2 scenarios where a judgment may be said to have been entered for more that what was actually due. The point of reference in both cases is what was claimed by in the plaintiff statement of claim. In the first scenario a judgment can be said to be entered for too much when the plaintiff enters judgment for items outside or beyond those particularized in the statement of claim. The second scenario is where the plaintiff has a judgment entered for items particularized in the writ of summons but without taking into account a defendants’ effort or payment made in liquidation of part of a plaintiffs’ claim.
In the
present case the plaintiff can be said
to have been within the statement of claim when it entered judgment for the
interest and the 15% collection
charges. This Court is of that view and
wishes to state that any resistance to the plaintiff’s claim to judgment for 15
% collection costs should have been properly taken up by the defendant as part
of its defence on the merits did not as
an irregularity in terms of entry of a judgment for too much otherwise matters
would get confused. One would not
differentiate between objections to judgment on the basis of meritorious
defence and those based on irregularity in the judgment itself.
The
defendant shall also have specified the irregularity about the entry of
judgment for interest without any assessment thereof by this court. This court therefore does not find that
the judgment was for too much in so far as the interest and the collection
costs aspect of the judgment are
concerned. Nevertheless, this court
considers that no prejudice has been done to the plaintiff who was fully aware
if the defendants’ intention to object to the judgment for irregularity in that
an arbitrary interest rate was charged on the sum claimed by the plaintiff.
This
court shall consider the irregularity about interest from the perspective. The defendant argued that the inclusion of the interest rate on
the sum claimed was done arbitrarily without this courts’ sanction and that the
same warrants the setting aside of the default judgment. The plaintiff on the contrary submitted that
there is no sense in setting aside a default judgment in tot only because the interest
was not properly entered. Counsel for
the plaintiff asserted the actually this court has power to and can vary the
judgment to rectify the irregularity.
He in effect sought this court to vary the aspect of interest in the
judgment.. Ron Ponlenic v KFCTA Civil cause no 188 of 1996.
This court notes that an order amending a judgment can indeed be made on
the defendant’s application to set aside judgment see Ban Hin Lee Bank
Berhad v Sonali Bank, The Independent , November,28 1988 cited in
Editorial … 13/9/8 under 0.13 r 9 RSC. But
this court further notes that the judgment for k520, 00.00 entered by
the plaintiff herein was for too much.
Counsel for the plaintiff asserted that the sum due was K420,000.00 which is les than the
K520,000.00 on which judgment was entered.
This is not withstanding that the defendant contended that the sum due
is much less at K250,000.00.
This
court therefore finds that the judgment on the principal sum due was for too
much and irregular having not taken into account the payment made by the
defendant in satisfaction of the debt due.
The
irregular judgment was executed by the Sheriff against the defendant. This court is of the view that the defendant
already suffered prejudice as a result of the execution of a judgment for too
much on itself. And that it would be
unjust for this Court to exercise its power to the judgment herein. This court
is therefore of the view that it is just that the judgment herein be set
side for irregularity having been entered and executed for too much in terms of
the principal sum due and interest thereon.
The
judgment and execution are therefore
set aside for irregularity. On the
setting aside of an irregular judgment and execution thereof the guilty party
bears the sheriff fees and expenses.
See Novatech Engineering v Malawi Housing Corporation civil
cause No. 389 of 2001. And in the
present case the plaintiff is condemned to pay the sheriff fees and expenses
within 21 days of this order. The
defendant shall be at liberty to file its defence herein within 7 days of this
order. Costs on the setting aside of
the judgment herein are awarded to the defendant.
This
court shall, not consider the defendant’s other grounds for seeking to set
aside the judgment herein viz that it has a good , defence to the plaintiff’s
claim or that the writ of summons was not served on it.
Made in
Chambers at Blantyre this ………. December,2003.