Hara v National Bank of Malawi (MSCA Civil Appeal 45 of 2016) [2017] MWSC 20 (1 November 2017)

a JUDICIARY IN THE MALAWI SUPREME COURT OF APPEAL SITTING AT BLANTYRE MSCA CIVIL APPEAL NO. 45 OF 2016 ON THE 1° DAY OF NOVEMBER 2017 BETWEEN CORON PRUE RSF RAPER REE TET TOES REESE EH eee EEO OR RET EES EU ESS SERED EEE SOE eEEe eee EeEeee ESN eeeene® ee ee ere eee eee eee eee erry CORAM: HONOURABLE JUSTICE TWEA SC. JA I. KHAKI (MISS) COUNSEL FOR THE APPELLANT M. SAUTI PHIRI COUNSEL FOR THE RESPONDENT C. MASIYANO/MRS CHIMTANDE RECORDING OFFICERS iS creceCRRNs CeeTRenR ERGang ay SiNE REPORTER ORDER The respondent brought this summons to dismiss appeal for Want 12" September, 2017. It was set down for hearing on 4" October, la When the case was called in Chambers, the parties informed the Cou up with a consent order. They applied that, should the Court apprd the same be issued. Ordinarily the Court would not have difficult order. However, what was in issue in this application is when should serve skeleton arguments for the purpose of hearing an appeal. The vesesseeeeee APPELLANT meena RESPONDENT of Prosecution on the W rt that they have come ve the consent order, y in issuing a consent 1 an appellant file and ssue was whether the legal position is as enunciated by Mwaungulu SC JA in the case of Anglia Book Distributors * Limited vs The Registered Trustees of Kalibu Ministries Academ SCA Civil Appeal 54 of 2015. (The judgment was passed on 3 day of May 2016.) or ie obtaining in the cases of Electoral Commission and Another v Mkandawire MSCA Civil Malawi Housing Corporation vs Western Construction Company Li 2013 Counsel for the applicant undertook to send, electronically, t Appeal 67 of 2009 and mited Civil appeal 18 of ne cases of Anglia Book Distributors Limited (Supra) and The Registered Trustees of Tithandlizane Carpenters Shop | thank Counsel for the Foletsani Tchawongo MSCA 2 OF 2012. examined. The gist of this case is that on 26" January, 2016 the Court below this case; being Civil Cause 897 of 2009. The Appellant was dissatis and filed a Notice of Appeal on 27" February, 2016. The case was record on 21% July, 2016. The record was settled. However, ¢ respondent filed for leave for extension of time to cross appeal. Le August, 2016 since then the case has stalled. It is on record that th other things, was the request for inclusion of certain documents by delay by the Registrar of the Court below to have the record ready. therefore, is that, as of now, the Record of Appeal is not ready. It is the position of the parties that following the order of Mwaungu Distributors Ltd (Supra), the appellant should file with this Court wh “Initial Skeleton Arguments”, within 14 days, should | approve the dj | hereby decline my approval. It is my view that Anglia Book Distrib is not good law. | will refrain from commenting on the details there for a full hearing on the issues. The judge raised several good argu been better if the matter was brought before a full Court for heari mind that we are in the process of adopting our own Civil Procedure that the new rules will influence a change in the development However, | wish to point out, as was said in the case of Geofrey Do Petros v The Republic MSCA Criminal Appeal 14 of 2013, that the f were moot. His Lordship was grappling with the case management in the case. One would admit that he raised good points, but it wo Lordship was trying to align our Practice Direction 1 of 2010 with 1 laws of England. The fact remains that our Practice Direction 1 of 20 two cases which | have Helivered a judgment in fied with the judgment called for settlement of bn 25" July, 2016, the Ave was granted on 11" e cause thereof, among the respondent and the The fact of the matter lu SC JA in Anglia Book At has been termed the aft Consent Order. utors Limited (Supra) it bf because | did not call ments. It would have ng. However, | bear in q Rules. It is anticipated of our jurisprudence. ff Bottoman and Peter indings of the Court in which was not in issue uld not be lost that his he applicability of the LO was passed to assist our practice and procedure under our Supreme Court of Appeal Ruleg. | was referred to the case of The Registered Trustees of Tithandizane Carpentry shop (Supra), Justice Mbendera SC said: “Our legal framework compels us to constantly re-examine our fundamentals. The Act (Supreme Court of Appeal Act) and the rules made thereunder mu$t speak loudly and given pre-eminence in this Court. As will be apparent, the old 0.59 tune with our legal framework than the CPR Part 52” This is the point made in the case of Joshua Chisa Mbele vs Davi James Mapunda and Zebunisa Tembo MSCA Civil Appeal 8 of 2015 that we should move away from giving prominence to Civil Procedure Rule 1998 of Engla own laws. Further, having recourse to the practice and procedure Appeal in England, should not be licence to ignore our own law. as said by Mbendera SC JA in the Tithandizane case (Supra), that England, in any case, is not the final court. Practice Direction 1 of 2 this Court in case management under our Supreme Court of Appé of RSC is more in d at the expense of our bserved in the Court of ne has to bear in mind, the Court of Appeal of 10, was issued to assist al Act and Rules made thereunder. Interpreting Practice Direction 1 of 2010 in the light of the practice and procedure in the Court of Appeal in England is hardly beneficial tc law. It is my finding therefore, that the stage at which the present case appellant to file and serve skeleton arguments. | would therefore fe vs_Western Construction Limited (Supra). Case are abound notwithstanding that it is the duty of the Registrar in the Court be the record of appeal in this Court, the appellant is under a duty tc process. In this respect therefore, | order that the parties, since there is activity follow up the preparation of the record of appeal so that it the 15" December, 2017. Costs will be in the cause. Pronounced in chambers this 1° day of November 2017 at Blantyre. ./B. TWEA SC JUSTICE OF APPEAL the application of our is does not require the bllow the cases of MHC that inform us that ow to prepare and file activity follow up the A cross appeal, should s filed in this Court by