Chimbidzi v The Salvation Army Church Council (Civil Cause 240 of 2019) [2021] MWHC 281 (26 November 2021)

IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY CIVIL DIVISION CIVIL CAUSE NO. 240 OF 2019 BETWEEN JAMES CHIMBIDZI.............. ........................................................................... CLAIMANT THE SALVATION ARMY CHURCH COUNCIL DEFENDANT AND Coram: Brian Sambo, Assistant Registrar Mr. T. Kalua, of counsel for the Claimant Mr. Mwawa, of counsel for the Defendant Mr. Kumwenda, Official Interpreter/ Law Clerk RULING This is an interparte application for an order staying/ suspending execution of a default judgment and an order of assessment of damages. The application was, actually brought ex-parte but owing to the circumstances of the matter, I ordered the Defendant to bring it interparte. The Defendant supported their application by a Sworn Statement by Pastor Simon Batson. Reading from paragraph 3 of the same, he deponed as follows; James Mbiridzi vs The Salvation Army Council, Civil Cause No. 240 of 2019 i. THAT since the time I was transferred to Area 25 Salvation Army and succeeded Pastor Godfrey Chagwa, between November, 2020 and December, 2020, I only came to know about the present proceedings after my office was served with the order on assessment of damages dated 24th day of March, 2021 on the 14th of March, 2021. ii. THAT I therefore enquired from my predecessor, Pastor Godfrey Chagwa, regarding all the court documents/processes he may have been served with but he also stated that I should search in the office. However, I never found the said court processes since there was no proper handovers. iii. That I diligently searched the office looking for the said documents but to no avail. iv. That further, I tried to seek assistance from the Registiy using the Civil Cause Number 453 of 2019 but could not find the court file. v. That until I {we) retained the lawyers, Lincoln Edwards & Company, it was when it was realised that the case number was erroneous hence the difficulties to find the case file for perusal and make an informed decision. vi. That I have been informed by our lawyers, who have perused the court file, that we have a defence on merit as such we are desirous to contest the proceedings expeditiously. Now produced is a draft copy of the Defence and counter-claim exhibited and marked as °SB2”. vii. That the delay and or failure to file relevant documents with the court was not intentional. In retaliation, the Claimant, through his counsel opposed the application. Through the Sworn Statement by Mr. Trouble Kalua, Deputy Director of the Malawi Legal Aid Bureau, he deponed as follows; a. That I have conduct of the said matter on behalf of the Claimant and as such I am duly authorized to swear this statement. James Mbiridzi vs The Salvation Army Council, Civil Cause No. 240 of 2019 b. THAT all information deponed herein have come to my knowledge in the course of handling the said matter, information which I verily believe to be the truth to the best of my knowledge and belief. c. THAT the Claimant commenced an action against the Defendant by way of summons and the same was duly served on the Defendant through Major Godfrey Chagwa who was at the time in charge of responding on behalf of the Defendant. d. THAT the Defendant never entered a defence despite being duly served with the summons, and on 6th day of November, 2019, the Claimant obtained a default judgment. e. THAT the said default judgment was duly served upon the Defendant through Major Godfrey Chagwa on the 12th November, 2019. f. THAT the matter was then set down for hearing of assessment of damages and the Defendant never showed up or filed any processes or applications. g. THAT on 26th March, 2020 the assessment of damages was finally set down and ready to be heard, the court informed the Claimant that the Defendant wrote the court a letter seeking an adjournment and that the said letter was delivered to the court only the day before the date of hearing. h. THAT the Claimant asked the court to proceed in the Defendant’s absence and, consequently, assessment of damages was heard in the Defendant’s absence. i. THAT the Defendant has only decided to act on the present proceedings in July, 2021; over 18 months after the default judgment was obtained. j. THAT the Defendant’s claim that they were not aware of the court proceedings and that they do not have any copy of the documents relating to this matter is false and an attempt to mislead the court as all processes were duly served on the Defendant. k. THAT the Defendant has only began to file court processes almost 2 years after the default judgment was obtained which shows their lack of interest in defending the matter herein. Janies Mbiridzi vs The Salvation Army Council, Civil Cause No. 240 of 2019 b. THAT all information deponed herein have come to my knowledge in the course of handling the said matter, information which I verily believe to be the truth to the best of my knowledge and belief. c. THAT the Claimant commenced an action against the Defendant by way of summons and the same was duly served on the Defendant through Major Godfrey Chagwa who was at the time in charge of responding on behalf of the Defendant. d. THAT the Defendant never entered a defence despite being duly served with the summons, and on 6th day of November, 2019, the Claimant obtained a default judgment. J e. THAT the said default judgment was duly served upon the Defendant through Major Godfrey Chagwa on the 12th November, 2019. f. THAT the matter was then set down for hearing of assessment of damages and the Defendant never showed up or filed any processes or applications. g. THAT on 26th March, 2020 the assessment of damages was finally set down and ready to be heard, the court informed the Claimant that the Defendant wrote the court a letter seeking an adjournment and that the said letter was delivered to the court only the day before the date of hearing. h. THAT the Claimant asked the court to proceed in the Defendant’s absence and, consequently, assessment of damages was heard in the Defendant’s ( absence. i. THAT the Defendant has only decided to act on the present proceedings in July, 2021; over 18 months after the default judgment was obtained. j. THAT the Defendant’s claim that they were not aware of the court proceedings and that they do not have any copy of the documents relating to this matter is false and an attempt to mislead the court as all processes were duly served on the Defendant. k. THAT the Defendant has only began to file court processes almost 2 years after the default judgment was obtained which shows their lack of interest in defending the matter herein. James Mbiridzi vs The Salvation Army Council, Civil Cause No. 240 of 2019 1. THAT the undue delay in the Defendant’s actions will cause a major prejudice to the Claimant and would consequently lead to denying him of the fruits of litigation. On 26th October, 2021, I heard the application interparte, and I now return to give my ruling. There is, basically one issue for determination in this matter. The issue is whether or not the Defendant could stay or suspend execution of the default judgment and order of assessment of damages herein. There is no need for this court to take a winding road in order to determine this matter. The Defendant cites Order 10 Rule 1 as read with Order 2 Rules 1 & 3 (a), (b), (c), and (f) of Courts (High Court) (Civil Procedure) Rules, 2017 (CPR, 2017). Order 10 Rule 1 of the CPR, 2017 reads as follows; A party may apply during a proceeding for an interlocutory order or direction of the Court by filing an application in a proceeding in Form 4. Since the Defendant would also like us to read the above provision together with those under Order 2 Rules 1 and 3 (a), (b), (c) and (f) of the CPR, 2017, I should also reproduce it; Order 2 Rule 1: The failure to comply with these Rules or a direction of the Court shall be an irregularity. Order 2 Rule 3: Where there has been a failure to comply with these Rules or a direction of the Court, the Court may_ (a) set aside all or part of the proceeding; (b) set aside a step taken in the proceeding; (c) declare a document or a step taken to be ineffectual; (f) make any order that the Court may deem fit. James Mbiridzi vs The Salvation Army Council, Civil Cause No. 240 of 2019 The latter provision becomes a remedy where a party has messed up with the adjective law in bringing a particular step. I wish the Defendant had come out clearly as to which step they think they have flouted the CPR, 2017. Somehow, to me, it sounds as an admission to the fact that the delay occasioned by the Defendant in bringing up this application is indeed too inordinate. The filed application, in itself, is not wrong. Order 10 Rule 1 of the CPR, 2017 produced above, allows a party to bring such applications but the question should be with regard to the manner in which it should be brought. I consider the delay of more than a year in filing the present application rather too inordinate considering the fact that the Defendant was duly served with court processes, but chose to remain unmoved. Service upon Major Godfrey Chagwa was proper service as he was, at that time responsible for the Defendant’s suits. He remained quiet even after being served with court processes for a number of times. The said Major Godfrey Chagwa could be best described as a reckless and careless leader. He never took up any step to come to court and ask what he could do to defend a matter. It cannot be said that, since his birth, he did not hear about the existence of courts or law suits. Even when Pastor Simon Batson took over from him, as the facts in the Sworn Statement by the latter discloses, he never even informed the new in-charge. He left just like that. In the same vein, I cannot believe the Defendant saying they were not aware of this matter. The Sworn Statement by Pastor Simon Batson clearly shows that they were aware but their own officers were disorganized, careless and reckless. Paragraph 4 of the said Sworn Statement reads as follows; That I therefore enquired from my predecessor, Pastor Godfrey Chagwa, regarding all the court documents/processes he may have been served with but he also stated that I should search in the office. However, I never found the said court processes since there was no proper handovers. (The underlined is emphasized). James Mbiridzi vs The Salvation Army Council, Civil Cause No. 240 of 2019 i If it were true that Major Godfrey Chagwa did not know about this case, he would not have instructed Pastor Simon Batson to check in the office for the documents. Now, bringing this application after 2 years, in these circumstances, is nothing less than an abuse of court process. I would agree with counsel for the Claimant that the present application has the effect of denying the Claimant the fruits of his successful litigation. The Sworn Statement further talks about a misleading case number. This issue should not arise considering the fact that the Defendant was duly served. Courts do not only use case numbers to identify files; there are other ways too such as checking names of the parties on the case files and case registers. This was a mere typographical error and no party should every seek refuge in it. The real issue is that there is inordinate delay. The same is too inordinate to be cured by Order 2 of the CPR, 2017. I dismiss the application with costs. Made in chambers today the 26th of November, 2021. James Mbiridzi vs The Salvation Army Council, Civil Cause No. 240 of 2019