IN THE HIGH COURT OF MALAWI
COMMERCIAL CASE NUMBER 35 OF 2011
COLLINS KAZEMBE MIGODI T/A MICO TRANSPORT PLAINTIFF
CORAM: THE HONORABLE MR. JUSTICE L P CHIKOPA
Counsel for the Plaintiff Absent
Chokhotho of Counsel for the Defendant
Banda, Court Clerk
By Originating Summons dated February 16, 2011 the plaintiff brought this action seeking a determination whether:
i. On a true interpretation of sections 7 and 14 of the Bills of Sale Act the defendant’s Bills of Sale are valid and enforceable; and
ii. Whether and if the answer to (a) above is in the negative the defendant’s Bills of Sale should be set aside.
The defendant disputed the claim and filed a counter claim. On the date of hearing namely December 15, 2011 the plaintiff did not turn up despite obviously having been served. This was not the first time that the plaintiff had failed to turn up. When he first failed to turn up on October 27, 2011 we ordered that his case stand dismissed unless he paid, up front, the costs of the aborted hearing. He has not made good that order. But seeing that we did not have any good reason not to proceed on December 15, 2011 we did.
Because the plaintiff did not turn up the defendant applied that their action be dismissed. Strictly speaking there was nothing to dismiss. The plaintiff’s case stood dismissed for his failure to comply with our order of October 27, 2011. But we agreed all the same and formally dismissed the plaintiff’s case. On the counterclaim it turned out that the plaintiff did not file a notice of intention to defend. Neither did he file a defence. The defendant was entitled to ask that a judgment be entered in default of intention to defend/defence to the counterclaim in their favour. Going through the record we note that the defendant did exactly that. A default judgment was thus entered in their favour in the sum of K24863876.62 plus costs. It is dated December 15, 2011 the date we were meant to hear this matter. At the aborted hearing of the matter Counsel for the defendant suggested that we proceed on the affidavit in opposition and the skeletal and enter a further judgment in favour of the defendants on the merits. Good thought. We just however think that the defendant cannot have it both ways. Having by its own volition entered a judgment in default we think they should abide by that. Otherwise we will have to contend with the unnecessary technicality of having by implication to set aside a default of judgment in respect of which no application in that regard has been made.
By way of conclusion therefore the plaintiff’s claim stands dismissed for the reasons set out above. Judgment on the other hand has been entered on the defendant’s counterclaim in default on the one hand of notice of intention to defend/defence and on the other in default of compliance with our order of October 27, 2011.
Costs are for the defendant in any event.
Dated this December 28, 2011 at Mzuzu.
L P Chikopa