IN THE HIGH COURT OF MALAWI
ABC COSMOS LTD ………………………………………………………….PLAINTIFF
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  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.