On
the 14th
day of January 2016, a default judgment was entered against the
applicant.
The
first respondent subsequently obtained a writ of execution which he
used to attach several of the applicant's property on 23 February
2016. Upon being served with the inventory and a copy of the relevant
default judgment, the applicant filed an application for rescission
of the default judgment.
This,
therefore, is an application for stay of execution, on an urgent
basis, pending the finalisation of the application for rescission of
judgment….,.
As
regards prospects of success in the application for rescission, it
was submitted that the applicant has bright prospects of success.
Taking into account that the critical factor for consideration is
whether there is good and sufficient cause to rescind the judgment,
it was contended that in
casu
there is indeed good and sufficient cause to have the default
judgment rescinded for the following reasons:
(a)
The applicant was not in willful default when it failed to enter
appearance to defend the main action in that its representatives
never saw the summons and declaration which was served at “Bayhorse
Road, Hanz Cross Farm Chakari by way of affixing to the outer
principal gate after a male employee refused to accept service for
fear of victimization.” Also annexure G, which is the security
guard's 'Occurrence
Book',
does not reflect a record of any such visit by the 2nd
respondent.
(b)
The applicant operates a gold milling site at No.34 Chakari which is
opposite Hanz Cross Farm. There is a main gate entering into
applicant's gold milling site. On the other hand, there is also a
main gate entering into Hanz Cross Farm main gate. Further, it was
argued that the second
respondent attempted to attach property at Hanz Cross Farm where he
had earlier on served summons. He was then re-directed to the
applicant's mine. Finally, it was submitted that the second
respondent was mistaken as to the applicant's precise location.
Consequently, it cannot be said that the applicant was knowledgeable
of the action, its legal consequences and consciously and freely took
a decision to refrain from giving notice of intention to defend….,.
The
application was vigorously opposed by the first respondent who went
as far as accusing the deponent of the founding affidavit of perjury.
It
was contended that the papers were served on the applicant and that
service is proper. Reliance was placed on the return of service which
is Annexure A. The first respondent argued that the fact that the
same address for service is the same address where attachment was
carried out shows that service was effected on the correct address.
The averment that process was served on the wrong address remains
bold, unsubstantiated and unreasonable in that no supporting
affidavit was attached from the alleged employee at Hanz Cross Farm
who re-directed the second respondent after he got lost….,.
The
second respondent did not oppose this application but contested the
prayer to pay costs.
In
paragraph 4 of his report, the Additional Sheriff states;
“4.
Summons were not affixed on the Hanz Cross Farm main gate as alleged.
However, a diligent consultation was sort (sic) at Hanz Cross Farm
before affixing at the principal
gate (boom gate) for the applicant.”…,.
What
boggles the mind is that the Deputy Sheriff denies what is exactly on
his return of service. It shows that the summons and declaration were
served at “Bayhorse Road, Hanzy Cross Farm Chakari.”
This
is not the applicant's address.
The
correct address of the applicant is 34 Chakari which is opposite Hanz
Cross Farm. The Deputy Sheriff does not provide further details of
the location of the applicant's milling site. He does not describe
what was written on the gate and why he believes the applicant's
address for service is Hanz Cross Farm. In my view, where there is a
challenge, the Sheriff must do more by way of giving precise details
of the location of the party's physical location.
In
casu,
his report is brief and does not assist the court in deciding the key
issue. See Croco
Properties v Swift
HH20-13.
For
these reasons, I find that the applicant has established the
requisites for an application for stay of execution pending the
determination of an application for rescission of the default
judgment. Accordingly, it is ordered that pending the return date,
the applicant is granted the following relief:
1.
That execution of the judgment issued by this court on 14 January
2016 be and is hereby stayed and if the second respondent has removed
any of the applicant's property pursuant to execution he is hereby
ordered and directed to release the removed property upon service of
this order.
