Somata Trading v Pragji (Civil Case No 651 of 2005 ) ((Civil Case No 651 of 2005 )) [2005] MWHC 46 (01 January 2005);




CIVIL CASE NO. 651 OF 2005






Nankhuni for the plaintiff

Liwimbi for defendant


This is an application to have a default judgement, which was obtained in this matter on the 29th day of June 2005, set aside on the basis that it was irregular. There were two grounds that were raised for the defendant’s assertion that the default judgement was irregular. The first ground was that the judgement was obtained before the expiry of the prescribed time within which the defendant had to serve his defence upon filing an intention to defend the proceedings. The second ground was that the judgement was obtained inclusive of collection charges and that that is against the law. Further, and as a consequence to this application, the defendant applied that the garnishee order nisi which the plaintiff obtained following the default judgement should also be set aside. The application was opposed by the plaintiff.

These proceedings were commenced by the plaintiff by writ of summons on the 27th day of May 2005 and according to the plaintiff, the writ was served on the defendant by post on 30th May 2005. Having sent the writ by post, the defendant acknowledged service of the same on the 29th day of June 2005; this was also the day on which the acknowledgement of service was filed with this court. However when the defendant was filing the acknowledgement of service, the plaintiff had already filed the default judgement on the 23rd day of June 2005 but that it was only signed by a Registrar on the 29th of June 2005.

From the facts outlined above, I would agree with the plaintiff that if the writ was sent by post on the 30th day of June 2005, there would be a presumption that the same would have been received by the defendant by the 7th day of July. Indeed I would also agree that in terms of the law, the notice of intention to defend should have been filed by the 21st day of June 2005 and that when the same was filed on the 29th of June, it was done out of time. Indeed after the 21st of June the plaintiff was entitled to enter a default judgement, which they did by filing the same on the 23rd of June. In this regard then I do dismiss the defendant’s application as based on the first ground that the judgement was obtained before the expiry of the prescribed time.

Having said that I now move to the second ground of this application, namely that judgment was obtained inclusive of collection, which counsel for the defendant argued was illegal in view of the decision of the Supreme Court in the case of J.L. Kankhwangwa and others v Liquidator Import and Export (Mw) Limited Civil Appeal No. 4 of 2003 (unreported). In this regard it was the view of this court that what counsel was asserting was that judgement was entered for too much. Indeed a judgement entered for more than the amount actually due is bad and can be set aside (see Hughes v Justin [1894] 1 Q.B. 667). Indeed the Kankhwangwa case is very clear that collection costs can not be claimed after the matter has begun, which was clearly the case in this instance. Furthermore, the fact that this amount was included in the judgement and is one that the plaintiff was not entitled to, clearly means that the judgement was not limited to the amount that was due to the plaintiff at the time that judgement was entered and since this error was not corrected under O.20 r 11, the defendant’s application to have the default judgement set aside, succeeds on this ground. Thus the default judgement obtained by the plaintiff on the 29th day of June 2005, is hereby set aside ex debito justitiae. It also follows on these premises that the Garnishee Order Nisi which was obtained by the plaintiff as well as the Warrant of Execution will also be set aside.

Finally, let me now tackle the issue of sheriff fees and expenses. Under Order 47/1/8 it is provided that execution may be set aside where execution has been improperly issued. This can be done even after execution has bee levied. The rule further provides that where the court sets aside a default judgement under O.13 r 9 or O. 19 r 9, it will also at the same time, set aside and execution levied on such judgement, but will ordinarily provide for the costs and charges for such abortive execution to be paid by the defendant, if the default judgement was a regular one. In this instance, it is quite clear that the default judgement that was obtained by the plaintiff was irregular in that the same was entered for too much. In view of this then and also in consideration of S. 44(3) of the Sheriffs Act, it will be the order of this court that the plaintiff should bear the sheriff fees and expenses and that if the same had been paid by the defendant, the plaintiff should duly reimburse him.

Made in Chambers this………day of……………………………………….2005.