Chilokoteni and Ors v G4 Security Malawi Limited (Matter No 180 of 2010) (180 of 2010) [2010] MWIRC 6 (28 May 2010);







CHILOKOTENI AND THREE OTHERS......................................... APPLICANTS


G4 SECURITY MALAWI LIMITED.................................................. RESPONDENT

Nriva J Deputy Chairperson

Mipande F of Counsel for the Applicant

Katuya A of Counsel for the Respondent

Chimkudzu M Court Clerk

Nriva D.C.P.


This is a motion by the respondent to set aside the default judgment. The respondent argues that they have a meritorious defence to the claim. The further argument has been that the respondent failed to file the response not by design. Rather it was due to the fact that the respondent’s representative was told by a member of staff at the Court that they could not trace the case file. As a result, they only left the response without filing it. Due to that fact, the applicant obtained a default judgment which the respondent sought, and was granted, stay of execution. The stay of execution had, as one of the conditions the time limit within which the respondent had to a file summons to set aside the judgment, as it were. However, the respondent observes that the copy of the order of stay they had omitted to indicate the time limit within which the respondents had to file the notice of motion to set aside the judgment. At the expiry of the time within which to file the notice of the motion to set aside the default judgment, the applicant filed a certificate of non-compliance with the stay order> as a result, they again obtained a warrant to execute the judgment. As a result, the respondent once again sought stay of execution of the judgment.

The respondent therefore prays to this Court to have the judgment set aside and also to hold the applicant to be responsible for the sheriff fees and expenses.

Counsel for the applicant, on the other hand, argues that it was incumbent upon the respondent to ensure that the response had been filed. If that had not been done, it was the duty of the applicant to file the response. On the time limit within which to file the motion to set aside the judgment, it was also attendant on the respondent to find out the condition. Counsel further argues that the applicant went ahead to find out the requisite period after which they filed the certificate of non-compliance leading to the execution of the judgment.

Counsel also attacks the notice of the motion. Whereas the heading of the notice talks about staying the default judgment, the body of the notice talks of an application for leave to represent the respondent. Counsel for the respondent, however, states that this is but a clerical error. Counsel for the applicant also states that they took steps to have the judgment set aside by consent but the respondents took no steps to commit itself to the consent. On this aspect, the applicants hold the view that the respondent merely intends to frustrate the wheels of justice in this matter. This, in the applicant’s view is antithesis the philosophy[phy of speed justice which this Court is supposed to achieve. On the other hand, the respondent has stated that they failed to sign the consent the reason being that the consent made no reference to the issue of settlement of sheriff fees and expenses.

Having heard both parties, the Court makes the following findings.

First, the respondent has argued that they intended to file the response to the statement of claim. They failed to do so. As a result, the applicants sought a judgment in default. It is not clear where they did this on the file and if so where the response had not, by then, if the file was then traced, been filed. Indeed, it is well to appreciate that the duty of the respondent is to file the response on the record. Thereafter, it is the mandate of the Registrar to enter default judgment. Since, that issue was not clear, and on the strength of the affidavit sworn in favour of the respondent, the Court ordered stay of execution of the judgment. That aside, the duty to deliver the response was with the respondent. Secondly, the stay of execution made it a point that the respondent had to seek this motion within fourteen days. Admittedly, by omissions some of the formal orders, one served on the applicants and another on the respondents, did not contain the time limits. It has been suggested that the applicants’ counsel declined to accept service of the stay because there was no time limit. On the other hand, the applicant’s state that they verified with the Court file which is why they filed Certificate of non-compliance. This Court is of the view that likewise, the respondent had to check the time limit within which they had to file the response. In my view, the respondent failed ti act prudently.

As a result, in setting aside the judgment I make orders as follows: The respondents despite the Court’s inadvertence to fill the time limit within which to file the notice of the motion, did not take reasonable steps to check that obviously conspicuous anomaly. On the other hand the applicants seem to have taken that step. Therefore, the Court orders the respondent to meet sheriff expenses in equal contributions.

The parties are granted the right to appeal against this decision within the next thirty days.

MADE this 28th day of May 2010

J Nriva