Magombo v Nserebo (64 of 2024) [2024] MWHC 60 (17 July 2024)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI BLANTYRE REGISTRY fo " ws . & Ok COMMERCIAL DIVISION Soe ON hy, Se has — Commercial Case No, 64 of 2024 Sa , “ (BEFORE HONORABLE JUSTICE K.T Manda) Ne BETWEEN: FLONNY MAG OMBO), ,......cccccccscnscccccccrecensseeceseceasneseeeaennaeeeres CLAIMANT -AND- ELVES NSEREBO\......ccccccreseececcceeseeesnnnaeraeseaneensneeenseerenaeeeseys 18? DEFENDANT ENERST KAONGA t/a MARANATHA BOYS ACADEMY......-.+4 2NP DEFENDANT CORAM: Manda J, Mbwana for the Claimant Khan for the 2"4 Defendant Kachimanga Court Clerk RULING This was the 2" defendant’s application with notice to have this action dismissed for disclosing no reasonable cause of action and for being frivolous, vexatious and an abuse of the court process, The application was made pursuant to Order 10 rules | to 3 as read with Order 1 rule 5 of the Civil Procedure Rules, 2017. The application was opposed by the claimant who raised some preliminary objections. At best, I found the preliminary objections to be frivolous. The claimant claimed that they were not given two clear days and yet they stated that they were served on counsel on the 10" of July, 2024 but that counsel only became aware of the same on the 11". In view of this, it was 1 counsel’s assertion that they were not able to file a notice to cross-examine the 2™ defendant “on the issues which were deponed in the sworn statement”. The issues deponed in the 2" defendant’s sworn statement relate to matters of fact. Paramount in the facts deponed is the fact that this action seeks to set aside a consent judgment which the parties entered into before Justice Alide, supposedly on account that there was a mistake of alleged fraud. Neither the mistake or fraud were specifically pleaded and this is what the application pointed out. To say the least, I did not see any ground for cross-examination of the 24 defendant. Then the claimant also took issue with the fact that supposedly Counsel Khan was acting without instructions from the 2"4 defendant as there was no letter of his appointment. | honestly did not know what to make of this assertion, save for the fact that it became quite clear to me that Counsel Mbwana was grasping at straws by trying to raise supposedly technical issues in a matter which really is not supposed to be before the court. The objections were summarily dismissed as quite frankly they were frivolous and vexatious, there being very careless and unsubstantiated assertions of fraud being made! Having dismissed the objections, we then proceeded to hear the substantive application. The application in this instance was that there was no reasonable cause of action to set aside a Consent Order which was entered into between the parties in Commercial Case no. 26 of 2021 before Justice Alide. It was the 2" defendant’s argument that the salient features for setting aside a consent judgment were not pleaded and cannot be proved. Further it was also pointed out that the reasons that the claimant advanced that there was no consent from her to her previous legal counsel to enter into a consent judgment is not a justification for her to bring fresh proceedings against the defendants. Rather, the claimant would have brought an action against her previous lawyers. In this regard, it was noted by Counsel Khan that the claimant actually attached a letter from Supedi and Company, who were her prevsious lawyers, to her pleadings. It was Counsel Khan’s assertion that the claimant would not have obtained that letter if she was not aware of what was happening. It was thus the 2™ defendant’s prayer that this action should be dismissed with costs and prejudice. In response, what we got is that the consent order should be set aside as it was entered into without the claimant’s consent and also that there was a material breach between the claimant and the 2" defendant in that “the claimant never received sums of money which were paid by the 2™ defendant to her legal practitioners”. This according to Counsel Mbwana entitled the claimant to bring this action against the defendants to set aside the Consent Order. It was aiso Counsel’s assertion that there was “evidence” that the Consent Order was entered into in bad faith as the claimant was “not allowed to receive the amount that she was entitled to under the Consent Order, to wit MK13, 500, 000”. In reply, it was stated that the fact that the claimant did not consent with her previous legal practitioners did not entitle her to set aside the Consent Judgement. Rather the claimant’s remedy would be to sue her previous lawyers for acting without instructions. Secondly, in terms of a “material breach” in terms of payment would also not allow the claimant to set aside the Consent Order since the claimant had, by law, the option of enforcing the Consent Judgment. Lastly, it was also pointed out that the claimant was not disputing the fact that the 2™ defendant actually made payments to the claimant’s previous legal practitioners and that ail the claimant’s remedies lie in Commercial Cause No. 26 of 2021. In this regard, it was the 2" defendant’s assertion that the claimant should have enforced the payment of the sum of MIS.10, 000, 000 on the 1* defendant. The 2" defendant thus reiterated that this matter should be dismissed with prejudice and costs. Having heard the application, I must agree with the 2™ defendant. First it must be stated that a Consent Order or Judgement cannot be set aside willy nilly. The relevant principles governing the setting aside of a consent order are set out in S v. S [2003] 3 WLR 1372 where Bracewell J said: “that the grounds for setting aside a consent order fall into two categories: (1) Cases in which it is alleged there was at the date of the order an erroneous basis of fact, e.g misrepresentations or misunderstandings as to position or assets. (2) Cases in which there has been a material or unforeseen change in circumstances afier the order, so as to undermine or invalidate the basis of the consent order as in Barder v Caluori [1988] AC 20, sub nom Barder v Barder (Caluori Intervening) [1987] 2 FLR 480 and known as the supervening event”. There is a common thread in the two categories of cases that in the first group, the court and the parties have been misled as to existing circumstances, and would not have made the order if the true state had been known. In the second group the court and the parties would not have considered the order appropriate, had it been known what was about to happen. (see Raja v Van Hoogstraten & Ors [2005] EWHC 2668 (Ch)) In the context of this action, the claimant on one hand states that there was a mistake when the Consent Order was executed. She does not state or plead what that mistake was. On the other hand, the same claimant states that the Order was executed without her consent, essentially asserting that her previous lawyers acted without her instructions. This 1 must state 1 found hard to believe as the Consent Order was in her favour and it gave her what she had claimed for under Commercial Cause Number 26 of 2021, What is more curious is also the fact that the claimant brought this action because her lawyers never gave her the money which was paid by the 2" defendant and that the Consent Order was not fully satisfied. Quite frankly, these are not grounds for bringing and action to set aside a Consent Order. As tightly argued by the 2" defendant, the claimant cannot sue the defendants for the actions of her previous lawyers! That is just nonsensical really! She should sue her erstwhile lawyers. And then it is clear (and has not been disputed) that the 2"! defendant paid to her previous lawyers the sum of MK3, 500, 000, which payment, as per the Consent Order, absolved the 2" defendant from any further liability. | would also agree that if there is an outstanding sum to be paid to the claimant, then her remedy lies in enforcing the Consent Order and NOT bringing a fresh action. In view of the foregoing, I must find that this action was indeed frivolous, vexatious and at abuse of the court process. I thus proceed to dismiss it with prejudice and also award the gn defendant costs of the action. K.T. MANDA JUDGE