Kamlomo v Malawi Telecommunications Limited (Civil Cause 316 of 2015) [2022] MWHCCiv 59 (8 April 2022)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI MZUZU DISTRICT REGISTRY CIVIL DIVISION CIVIL CAUSE NO. 316 OF 2015 BEFORE HONOURABLE JUSTICE KONDOWE BETWEEN D. M. KAMLOMDO........2...cccccccsccssceensescensescenccncesscccusvencenoenenenseeneseg ees PLAINTIFF AND MALAWI TELECOMMUNICATIONS LIMITED. .......:.00cceseeeesserseeeeeseeeee DEFENDANT CORAM: HONOURABLE JUSTICE MAUREEN KONDOWE Mandala, Counsel for the Plaintiff Munthali, holding brief on behalf of Counsel Khaki, Counsel for the Defendant Miss I. Mabaso, Senior Court Clerk RULING I BACKGROUND TO THIS RULING 1.1 The Plaintiff commenced this legal action by Originating Summons dated 93" November, 2015. The Originating Summons did not state the authority of law on the basis of which it was used to commence this legal action. It also did not bear a L.2 date of its hearing although it shows that it got served on the Defendant at its Mzuzu office on 24" November, 2015. DeGabriele J scheduled the hearing of the Originating Summons on 7" February, 2019. The Plaintiff appeared before this court on this day through his Counsel. Counsel for the Defendant did not appear in person owing to an alleged lack of renewal of his annual practising licence with the Malawi Law Society. He therefore asked another Counsel whom he instructed to adjourn the hearing of the Originating Summons to appear before the court on his behalf on brief on this day. DeGabriele J opined that Counsel could not hold a brief and appear at the hearing of the Originating Summons on behalf of Counsel who had no valid annual practising licence. She directed that the hearing of the Originating Summons would proceed in the absence of the Defendant. She excused the briefed Counsel from being present in the proceedings. She proceeded to hear Counsel for the Plaintiff who prayed for all the reliefs sought in the Originating Summons. By her ruling dated 7 February, 2017 DeGabriele J took the view that an unlicensed legal practitioner could not engage a licensed legal practitioner to appear in court proceedings on brief. She held that it was incumbent upon a legal practitioner to renew their annual practising licence in order for them to meet their obligations to their client. She reasoned that Counsel for the Defendant acknowledged the service of the notice of adjournment that set the matter down for hearing on 7" February, 2019. This explained his being able to instruct other Counsel to appear on his behalf on brief. In her view Counsel for the Defendant had ample time within which to renew his annual practising licence. He also had ample time within which to allow the Defendant to seek other Counsel. DeGabriele J directed that assessment was to be done before the Assistant Registrar no later than 21 days from the date of her ruling. This is the background against which she then proceeded to strike out the defence of the Defendant and to enter judgment for the Plaintiff with costs. 1.4 The Plaintiff brought an ex parte application in a proceeding for correction of date of judgment and extension of time of assessment of damages dated 23" July, 2021. This court directed that this application would be heard inter partes. By an inter partes application in a proceeding for correction of date of judgment and extension of time of assessment of damages dated 28" January, 2022 the Plaintiff sought from this court the order that the date of the judgment should be corrected. He also sought the further order to extend the time within which the assessment of damages were to be done. The application was brought pursuant to Order 10 rule 2, Order 23 rule 10(1)(2) and Order 3 rule 5 of the Courts (High Court) (Civil Procedure) Rules, 2017 (“the 2017 Rules”). It was supported by a sworn statement dated 23 July, 2021 sworn by Counsel for the Plaintiff. The application was opposed. APPLICATION SUPPORTING SWORN STATEMENT ALLEGATIONS Duk Die 2.4 oun Paragraph 2 of the application supporting sworn statement alleged that Counsel obtained knowledge and information of the facts from the Plaintiff and from a Medical Report; Paragraph 5 of the application supporting sworn statement alleged that this matter was heard on 7" February, 2019. DeGabriele J allegedly indicated that the date of her ruling would be communicated: Paragraph 6 of the application supporting sworn statement alleged that there were follow-ups including a notice allegedly dated 9" January, 2020 which was filed with the court through which a date was requested; Paragraph 7 of the application supporting sworn statement alleged that it appeared, inadvertently that judgment was delivered on 7" February, 2019 and put on the file for this matter without the clerks being made aware of that; Paragraph 9 of the application supporting sworn statement alleged that the Judgment was subsequently found and collected on 19" July, 2021 when Counsel for the Plaintiff physically checked the court file and found it on it; kd 2.7 Paragraph 10 of the application supporting sworn statement alleged that upon reading the ruling Counsel for the Plaintiff noted that the court directed that assessment was to proceed within 21 days from 7" February, 2017 instead of 7" February, 2019; and Paragraph 11 of the application supporting sworn statement stated that the Plaintiff prayed for orders to correct the date of the ruling which is erroneously stated as 7" February, 2017 and to extend the time within which the assessment of damages must be done. APPLICATION OPPOSING SWORN STATEMENT ALLEGATIONS 3.1 3.3 3.4 3D 3.6 The Defendant filed an opposing sworn statement to this application dated 11" February, 2022. It was sworn by its Counsel. Paragraph 4 of the opposing sworn statement stated that this court delivered its judgment on 7" February, 2019; Paragraph 5 of the opposing sworn statement alleged that there was no evidence that the Plaintiff brought regarding the alleged follow-ups that he made about the delivery of the ruling. The Plaintiff did not exhibit the alleged notice dated 9" January, 2020 marked ‘CGI’ which he alleged was filed with the court; Paragraph 6 of the opposing sworn statement alleged that even if the notice dated 9" January, 2020 was filed with the court as alleged, it got so filed almost a year after the delivery of the judgment. This showed a lack of vigilance on the part of the Plaintiff: Paragraph 9 of the opposing sworn statement alleged that collecting the judgment after more than two years (29 months to be exact) after its delivery showed Jack of vigilance on the part of the Plaintiff; Paragraph 10 of the opposing sworn statement alleged that extension of time had no logical basis to the issue of the correction of the date of judgment; and Paragraph 11 of the opposing sworn statement alleged that a delay of three years 1s Inordinate and inexcusable to warrant the extension of time. 4 THE EVIDENCE 4.1 4.2 In his application supporting sworn statement dated 23 July, 2021 the Plaintiff indicated that he would produce and exhibit a notice dated 9" January, 2020 marked ‘CGI’ which proved that a date was requested from the court. The application supporting sworn statement did not attach this alleged notice. The Defendant produced and exhibited no documents of evidence in its opposing sworn statement. THE LAW ON ACCIDENTAL SLIPS IN ORDERS 5.1 Order 20 rule 11 of the Rules of the Supreme Court states that clerical mistakes in orders, or errors arising in them from any accidental slip, may at any time be corrected by the court on motion or summons without an appeal. THE LAW ON EXTENSION OF TIME 6.1 6.2 6.3 Order 3 rule 5(1) of the Rules of the Supreme Court states that a court may, on such terms as it thinks just, by order extend the period of time within which a person is required or authorized by these rules, or by any ..., order ... to do any act in any proceedings. Order 3 rule 5(2) of the Rules of the Supreme Court states that a court may extend any period referred to in paragraph (1) although an application for extension is not made until after the expiration of that period. Order 5 rule 5(3) of the Rules of the Supreme Court states that the period within which a person is required by these rules, or by any order to ... amend any document other than a pleading may be extended by written consent without an order of the court being made for that purpose. THE LAW ON AMENDMENT OF DOCUMENTS Fel Order 20 rule 8(1) of the Rules of the Supreme Court states that for the purpose of ... correcting any defect or error in any proceedings, the court may at any stage of the proceedings and either of its own motion or on the application of any party to the proceedings order any document in the proceedings to be amended on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct. 7.2 Order 20 rule 8(2) of the Rules of the Supreme Court states that this rule has no effect in relation to a judgment or order. THE LAW ON ENFORCEMENT OF JUDGMENTS 8.1 UNDER THE COURTS ACT [CAP. 3:02 OF THE LAWS OF MALAWI] 8.1.1 Section 11(a)(vi) of the Courts Act [Cap. 3:02 of the Laws of Malawi] states that without prejudice to any jurisdiction conferred on it by any other written law, a High Court has jurisdiction to enforce its judgment ... in any manner which may be prescribed. Section 2 of the General Interpretation Act [Cap. 1:01 of the Laws of Malawi] defines “judgment” in relation to a court as including ...order...or decision. 8.2 UNDER THE LIMITATION ACT [CAP. 6:02 OF THE LAWS OF MALAWI] 8.2.1 Section 4(3) of the Limitation Act [Cap. 6:02 of the Laws of Malawi] states that an action cannot be brought upon any judgment after the expiration of twelve years from the date on which the judgment became enforceable... Section 2 of this Act defines an “action” as any proceeding in a court. OTHER LAWS OF RELEVANCE TO THIS APPLICATION 9. 1 THE 1994 CONSTITUTION OF THE REPUBLIC OF MALAWI 9.1.1 Section 41(2) of the 1994 Constitution of the Republic of Malawi (“the Constitution”) states that every person has a right of access to any court of law...with jurisdiction for final settlement of legal issues. 9.1.2 Section 41(3) of the Constitution states that every person has a right to an effective remedy by a court of law...for acts violating the rights and freedoms granted to them by this Constitution or any other law. 9.2 THE COMMUNICATIONS ACT [CAP. 68:01 OF THE LAWS OF MALAWI] 9.2.1 Section 6(1) of the Communications Act [Cap. 68:01 of the Laws of Malawi] states that the Malawi Communications Regulatory Authority (MACRA) which is established by section 4(1) of this Act regulates and monitors the provision of communications services. Section 6(1) (n) of this Act states that MACRA receives and investigates complaints relating to communications services and takes necessary action. Section 6(1) (t) of this Act states that MACRA negotiates with relevant Ministries, local authorities and private land owners with respect to rights of way. 9.2.2 There is no useful information in the opposing sworn statement to this application dated 11" February, 2022 that the Defendant filed and served on the Plaintiff that indicates the type(s) of licence(s) that MACRA issued it with. For this reason it is not possible to isolate the other parts of the Communications Act that are relevant to this dispute. 10. DETERMINATION OF THE APPLICATION OF THE PLAINTIFF 10.1 There are two issues that this court needs to determine in this application. These are whether the Plaintiff should be granted the orders to correct the date of the ruling erroneously dated 7" February 2017 and to extend the time within which to assess damages. The Plaintiff filed skeleton arguments dated 23" July, 2021. The Defendant filed none. 10.2 This court grants the Plaintiff the order to correct the accidental slip that erroneously stated that the ruling that DeGabriele J delivered in this dispute is dated 7" February, 2017 instead of 7" February, 2019 pursuant to Order 20 rule 11 of the Rules of the Supreme Court. Paragraph 4 of the application opposing sworn statement that the Defendant filed and served on the Plaintiff admitted that this ruling was delivered on the same day of 7" February, 2019 on which DeGabriele J 7 heard the Originating Summons. In paragraph 7 of his application supporting sworn statement the Plaintiff stated that “it appeared inadvertently that the Judge delivered the judgment on 7" February, 2019 and put it in the file”. The Judge’s Notes that are available on the court file confirm that DeGabriele J heard the Originating Summons on 7" February, 2019. The date of 7" February, 2017 that her ruling quoted was therefore an error. This court directs and orders that the erroneous date of 7" February, 2017 be and is deleted and substituted by the correct date of the ruling of 7" February, 2019. It is so ordered. This court has granted the Plaintiff this order pursuant to Order 20 rule 11 of the Rules of the Supreme Court on the basis of Order 35 rule 3(1) of the 2017 Rules which states that where a step in compliance with the practice and procedure under section 29 of the Act (“the existing procedure rules”) is taken in an existing proceeding, before the commencement date, in particular one that uses forms or other documentation required by the existing procedure rules, the procedure must proceed in the manner specified in the existing procedure rules. Order 35 rule 3(2) of the 2017 Rules states that any step which a party is required to take in response to something done by another party in accordance with the existing procedure rules must be in accordance with those rules. The Supreme Court of Appeal confirmed in the case of Sheriff of Malawi and the Attorney General v Universal Kit Supplies ex parte Universal Kit Supplies MSCA Civil Appeal No. 6 of 2017 (Being High Court (Lilongwe Commercial Division) Commercial Case No. 4 of 2015) that matters that got commenced before the 2017 Rules became operational on 3" October, 2017 must be resolved using the Rules of the Supreme Court which applied to them. The Plaintiff wrongly proceeded with his application for orders to correct the date of the judgment and to extend the time in which to assess damages by filing an application in a proceeding for these orders under Orders 10 rule 2, 23 rule 10(1) (2) and 3 rule 5 of the 2017 Rules. The Defendant which is legally represented never objected to this. These 2017 Rules do not apply to this case. They were not in force on 23" November, 2015, the date this legal action got commenced. It is so ordered. 10,3 The Plaintiff alleged that he only became aware of the ruling of DeGabriele J on 19" July, 2021. Sub paragraph 1.4 of this ruling noted that the Plaintiff initially filed this 8 application ex parte on 23" July, 2021. This was done within five days after he became aware of the delivery of the ruling dated 7 February, 2019 through its collection by his Counsel on 19" July, 2021. He further alleged that prior to 19" July, 2021 he was unaware that DeGabriele J had delivered her ruling. There is therefore in the circumstances of this particular case an acceptable and understandable excuse for the delay in having the damages assessed. Chipeta JA as he then was acknowledged that there are some cases in which an alleged delay cannot be regarded as inordinate and inexcusable. In the analogous but distinguishable case of The State (The Minister of Finance) ex parte Steven Majighaheni Gondwe M. S. C. A. Civil Appeal No. 68 of 2016 (Being High Court of Malawi, Principal Registry, Civil Cause No. 44 of 2012) his Lordship observed as follows: “...and if, as he further laments, it did not even notify him when it so delivered its ruling, with the result that it almost took the Applicant another year before he discovered that the decision had been pronounced, then can it really be said that the Applicant is to blame for not appealing within the time limits of the law? I hold here that the Applicant was the victim. He could neither dream when the ruling would come up for delivery, nor could he dream that the ruling had been pronounced. He therefore has good and substantial reasons for his failure to appeal within the time the law would have allowed him to appeal as of right in this matter.” 10.4 Order 3 rule 5 of the Rules of the Supreme Court which governs applications for extension of time gives this court the discretion to extend time to avoid injustice to any party to a legal action. The case of Schafer v Blyth [1920] 3 K. B. 140 is apt on this point of the law. Bramwell L. J. rightly observed as follows in the case of Atwood v Chichester (1878) 3 Q. B. D. 722 at 723, CA: “When an irreparable mischief would be done by acceding to a tardy application, it being a departure from the ordinary practice, the person who has failed to act within the proper time ought to be the sufferer but in other cases the objection of lateness ought not to be listened to and any injury caused by delay may be compensated for by the payment of costs.” In the case of Costellow v Somerset County Council [1993] 1 All E. R. 952, CA the Court of Appeal laid down useful guidelines for a dealing with cases in which a defendant files an application to dismiss an action for want of prosecution due to an alleged failure by a plaintiff to take some step in the proceedings within the time required by the rules and a plaintiff files an application to (or actually indicates that he will make an application) for an order to extend the time within which to take the step in question under Order 3 rule 5 of the Rules of the Supreme Court. This court stressed that the first principle of law here is that rules of court and their related rules of practice are put in place in the public interest for speedy resolution of cases. They must be obeyed. This court further emphasized that the second important principle of law to consider here is that a plaintiff should not be refused the adjudication of their claim on its merits on the ground of an error of procedure unless that has a prejudicial effect on the case of the defendant. The existence of prejudice to the case of a defendant is the only important critical and decisive factor in any case. 10.5 Ordinarily, any allegations by a defendant to the effect that there has been delay that is inordinate and inexcusable on the part of a plaintiff in the manner in which and the speed at which they have handled their case are dealt with as diligently as is possible in the particular circumstances of each case. A defendant demonstrates their diligence in this situation by filing an application with a court for an order for the dismissal of the matter on the ground of want of its prosecution. The case of Krakauer v Katz [1954] 1 All E. R. 244, CA confirms this principle of the law. The Defendant admitted in paragraph 4 of its opposing sworn statement to this application that judgment was delivered on the same day that DeGabriele J heard the Originating Summons on 7" February, 2019. This admission makes it clear that the Defendant was from this date aware that there was a judgment against it in this court that the Plaintiff would be at liberty to enforce against it. The Defendant chose after noticing that a lengthy period of time that would suffice as inexcusable and inordinate delay had passed without the Plaintiff taking any further step in the further prosecution of his case following the delivery of the ruling of DeGabriele J not to file and prosecute an application for an order of its dismissal for want of prosecution. It let sleeping dogs lie. Given these facts it cannot lie in the mouth of the Defendant to persuade this court to exercise its discretion in deciding whether or 10 10.6 10.7 not the time in which to assess damages should be extended against the Plaintiff. More so considering that in its opposing sworn statement dated 11" February, 2022 the Defendant did not allege any prejudice that it would suffer if the Plaintiff got granted the order for the extension of the time in which to assess damages. Sections 41(2) and 41(3) of the Constitution are clear that the Plaintiff has a right not only to access this court for the final settlement of the legal issues that arose in this dispute but also to an effective remedy. One important question of law that arises in this application is whether or not in the particular circumstances of this case these rights must be defeated by the procedural default the Plaintiff committed in pursuing this application on the basis of a wrong authority of the law which the Defendant did not object to. Order 2 rule 1 of the Rules of the Supreme Court states that where, ...at any stage in the course of or in connection with any proceedings, there has, by reason of anything done..., been a failure to comply with the requirements of these rules, whether in respect of time, ..., manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify ... any step taken in the proceedings ... Order 2 rule 2 of the Rules of the Supreme Court states that subject to paragraph (3) this court may, on the ground that there has been such failure as is mentioned in paragraph (1) and on such terms as to costs or otherwise as it thinks just...exercise its powers under these rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit. This application is not an appropriate context in which this court should make any findings and determine whether or not non-renewal of an annual practising licence by a legal practitioner is fatal to the conduct of court proceedings. Relevant but distinguishable High Court decisions on the facts on this point of law abound. They include Lackson Chimangeni Khamalatha and 26 others v Secretary General of the Malawi Congress Party Civil Cause No. 1347 of 2015. This application is also not an appropriate context in which this court should consider and determine the question whether or not holding a brief on behalf of a legal practitioner who has not renewed their annual practising licence has adverse legal 11 implications for the conduct of court proceedings. The ruling of DeGabriele J dated 7" February, 2019 is binding on the parties to this legal action. The Defendant did not seek an order to set this ruling aside on any alleged credible ground of its irregularity. It also did not file any appeal against it. An order of a court is valid until it is either set aside or successfully appealed against. It must be obeyed and enforced. It is so ordered. 10.8 This court observes that the Originating Summons dated 23™ November, 2015 10.9 pleaded no particulars regarding the quantity of the bricks the Defendant is alleged to have used to cover the underground telephone cables that it is alleged to have put on the land of the Plaintiff without his consent or their alleged purchase price/cost of production. Paragraph 12 of the Defendant’s Supplementary Affidavit in Opposition to the Originating Summons dated 26" February, 2018 stated that “As Northern Region Water Board was doing its work, it created a trench which exposed some of the Defendant’s cables. Thugs took advantage of this and started stealing the cables. The Defendant sent its men to the site to backfill the trench dug by the Water Board. It was during this process that a few bricks (not more than 20) fell into the trench. These are the bricks mentioned in paragraph 9 of the Plaintiff's main affidavit.” This claim constitutes special damages. It is settled law that a plaintiff is obliged to specifically plead this kind of claim with sufficient particulars and to also strictly prove it. The Supreme Court of Appeal emphasized this principle of the law in Patrick Murama ta Zikomo Ambuye Yesu Transport v Elenino Mulongoti and Citizen Insurance Company Limited M. S. C. A. Civil Appeal Number 33 of 2012 (unreported). In this case the Supreme Court of Appeal agreed with the decision of the Assistant Registrar in which he refused to award special damages on the ground that they were not specifically pleaded. This court directs the Registrar to proceed with the assessment of the damages in this legal action now that the time in which this is to be done is extended. It is so ordered. The Registrar is further directed to consider, deal with and determine the question whether or not these sought damages are capable of being assessed and t2 awarded to the Plaintiff in this case considering the following matters: Paragraph 4 of the ruling dated 7 February 2019 states that the defence was struck out and judgment got entered for the Plaintiff with costs. It does not state the specific nature of the awarded damages nor does it state the legal basis of their award. In his Originating Summons dated 23" November, 2015 the Plaintiff sought the following declarations and orders: (a) A declaration that the Defendant's servants or agents trespassed on the Plaintiff's land, Plot No. 2779, Title Number Katoto 31/249 at Area 3 in the City of Mzuzu; (b) A declaration that the conduct of the Defendant’s agents violated the Plaintiff's right to property as guaranteed under section 28 of the Constitution; (c) A declaration that the Plaintiff is entitled to damages from the Defendant as the employer or principal of the servants or agents that trespassed onto the Plaintiff's land; (d) An order that the Defendant should compensate the Plaintiff for both trespass and infringement of his right to property, and (e) An order that the Defendant was condemned in the costs of the proceedings. The ruling dated 7 February, 2019 should have been crystal clear on the specific remedies the Plaintiff got granted among the many he sought from this court and the legal basis for their grant. It is so ordered. Further directions that this court gives as regards the conduct of the assessment of damages proceedings before and by the Registrar are as follows: The Plaintiff shall file the notice of appointment for the assessment of the damages within fourteen days from the date of service of this ruling on the Defendant at its registered office. It is so ordered. The Plaintiff shall file and serve his damages assessment bundle on the Defendant at its registered office within fourteen days from the date proof of service of this ruling on the Defendant at its registered office is furnished to this court. It is so ordered. The Defendant is at liberty to file its objections if any to the assessment of damages proceedings within fourteen days after service by the Plaintiff of his damages assessment bundle on it at its registered office. It is so ordered. The Registrar shall be at liberty to schedule and fix a date for the hearing of the damages assessment proceedings after the Plaintiff and the Defendant fully comply with these directions. It is so ordered. 13 10.10 Order 62 rule 3(2) of the Rules of the Supreme Court states that no party to any proceedings is entitled to recover any of the costs of those proceedings from any other party to the proceedings except under an order of a court. Order 62 rule 3(3) of the Rules of the Supreme Court deals with the discretion that this court has to award costs and how that discretion must be exercised. Section 30 of the Courts Act [Cap. 3:02 of the Laws of Malawi] states that the costs of court proceeding are in the discretion of a court. This court notes that the Plaintiff brought this application under the wrong authority of law. This court further notes that the Defendant could have successfully opposed this application if it had objected to this matter. It did not. This court finally notes that the matters the Defendant raised in its opposing sworn statement to this application were unsustainable. They demonstrated to this court that Counsel for the Defendant did not peruse the court file prior to drafting, filing and serving the opposing sworn statement in order to appreciate the true status of the documents that were available on it as they related to this application so a sound litigation strategy for handling the opposition to this application got devised. These matters compel this court to direct and order that each party shall bear its own costs of this application. It is so ordered. 11. THE RIGHT OF APPEAL OF THE PARTIES AGAINST THIS RULING This court confirms that both parties have a right to appeal against this ruling before a single Member of the Supreme Court of Appeal in compliance with section 23(1)(b) of the Supreme Court of Appeal Act [Cap 3:01 of the Laws of Malawi]. However, this court declines to grant the parties leave to appeal against this decision. It is so ordered. Any party who will be dissatisfied with the decision that the Registrar will make in the assessment of damages proceedings has the liberty at law to appeal against that decision directly to the Supreme Court of Appeal. It is so ordered. M. KONDOWE \ JUDGE 14