Afrimax Limited v Datacom Limited and Another (Commercial Case 151 of 2021) [2024] MWHC 46 (3 September 2024)

Lh ty CAAT Seer RT Pay RY rae Pee Epo Republic of Malawi IN THE HIGH COURT OF MALAWI COMMERCIAL DIVISION BLANTYRE REGISTRY COMMERCIAL CASE NUMBER 151 OF 2021 (Before Justice Msungama) BETWEEN: AFRIMAX LIMITED 0... 0. ccccecccsccneeeeecssccusetuccasecsacensceeseueseceseausensecaesuasensons CLAIMANT -AND- DATACOM LIMITED ......ccccccssccssccccstsecntecssercessseseesssusesseessaressevscessesseseese DEFENDANT THE MALAWI COMMUNICATIONS REGULATORY AUTHORITY............5. THIRD-PARTY CORAM Judge Msungama Counsel Dikiya, for the Claimant Counsel Dzimphonje & Counsel Chaponda, for the Defendant Kapoloma, Court Clerk RULING |. This is an application by the Third Party herein for an order dismissing the action for want of prosecution. It is made under Order 10 rule | as read with Order 12 Rule 54 (2) and 56 of the Courts (High Court) (Civil Procedure) Rules 2017 and the Court’s inherent jurisdiction. 2. The Claimant and the Defendant in this matter are both companies registered under the laws of Malawi offering services in the telecommunication and internet space. They are both licenced to do their business by the Third Party. 3. The Claimant initiated these proceedings against the Defendant on 30" April 2021 claiming damages for interference with the spectrum they allege was allocated to them by the Third Party. The Defendant denies the claim. 4, The matter was scheduled for a mediation session on 11" of October 2021. That was before the Third Party was joined to the action. The mediation did not take place on that date because the court felt it had to deal with the application which had by then been filed by the Defendant to have the Third Party Joined to the action. The application to add the Third Party to the proceedings took place on the 14" December 202! when an order was granted to have the Third Party as a party. On that date, the court gave specific directions relating to the further proceedings in the matter. The court also ordered that 1 mediation over the matter would proceed after all the relevant documentation between the parties had been exchanged and filed with the court. 5. After the parties exchanged and filed all relevant documentation, the court should have proceeded to appoint a date of mediation, None of the parties prompted the court to appoint the mediation date. The matter thus fell into dormancy until this application by the Third Party to have it dismissed for want of prosecution. 6. During the hearing of the matter quite a substantial time was spent by the parties on the point regarding whether the Third Party could properly move the court to have the matter dismissed for want of prosecution. | do not believe that it is important for me to make a decision on that argument in view of my observation below. 7. The fact that the matter did not move to mediation is partly due to the fault of the court in that it did not appoint another date for the mediation that had been adjourned. In the premises, to proceed to dismiss the action for want of prosecution would certainly be an act of injustice to the Claimant. In the premises, | decline to dismiss the action and instead order that the matter come before me for mediation on 9" October 2024 at 10 am. Since both the Claimant and Defendant already filed their mediation bundles before the Third Party was added as a party, they are at liberty to file new mediation bundles at least 14 days before the date of mediation. 8. Due to the special circumstances obtaining in this matter, | make no order as to costs. Made in Chambers at the High Court, Commercial Division, Principal Registry, Blantyre this 3 day of September 2024, M. T. Msungama JUDGE