Pemba v RAB Processors Limited (Civil Cause 30 of 2012) [2017] MWHC 96 (12 May 2017)

Edward Pemba v. Rab Processors Kenyatta Nyirenda, J. JUDICIARY IN THE HIGH COURT OF MALA WI PRINCIPAL REGISTRY CIVIL CAUSE NO 30 OF 2012 BETWEEN EDWARD PE MBA .......................... ............. .......... ......... PLAINTIFF RAB PROCESSORS LIMITED .................... ................... ... DEFENDANT AND CORAM: THE HONOU Mr. Kapoto, of Mr. Jere, o Mr. 0. Chitatu, Court Clerk RABLE JUSTICE KEN f Counsel, for the Defendant Counsel, for the Plaintiff YATTA NYIRENDA Kenyatta Nyirenda, J RULING Summons for an Order that the matter herein which was This is the Plaintiffs on 9th February dismissed be restored practitioners Summons"]. The Defendant's Rules of Supreme 2017 for non-attendance to the cause list [hereinafter Summons is brought and his legal by the Plaintiff referred to as the "Plaintiffs under Order '32, r.5 of the jurisdiction. Court (RSC) and the Court's inherent The background set for 9th February communicated 2017. On the set hearing was default of appearance was also no explanation to the parties to the Plaintiffs Summons is very brief. Hearing date). The set hearing of the case was date was 2017 (set hearing through an order of this Court dated 11th January date, the case was called by the Plaintiff, either at 9: 13 in the forenoon. There and there in person or by counsel, before me for the default. 0.35, r. l of the RSC comes into play where there is failure party and it reads as follows: parties or either to appear by both --;;i;;-. H It_,,..... .................. ,_�•-..,........, LIBRARY ···c�;·l;�J· ·�i-, Edward Pemba v. Rab Processors Kenyatta Nyirenda, J. "l. (]) If, when the trial of an action may be struck action on the direction out of the list, of a Judge. without is called on, neither party appears, to the restoration prejudice, however, the thereof, (2)If, when the trial of an action is called on, one party does not appear, the Judge may proceed with the trial of the action or any counterclaim in the absence of that party." Counsel of the RSC, I ordered Jere prayed for the dismissal the case to be struck out of the cause list. of the case. Acting on the basis of 0.35, r. 1 by an affidavit, The Defendant's supported firm of Messrs Chagwamnjira the Plaintiff error in diarising: Summons was filed with the Court on 14th February sworn by Asma Osman Kapoto, legal practitioner and his legal practitioners & Company, wherein he attributes from Court on the set hearing 2017. It is in the the absence of date to an "3. THAT the matter herein was set for continued hearing on 9 th February, 2017. 4. THAT when our chambers our diary the said date of hearing Justices without asAOK 1. Potani proper arrangements and Mbvundula got the said date of hearing, and consequently we failed proceeded time of hearing on the said appointed of this case to appear before to indicate in for this matter. I now exhibit the copy of our diary 5. Tl/AT just after coming out of justice Potani 's court, I was then informed by Mr. Chitatu that thjs matter had been dismissed for non-attendance. 6. THAT the plaintiff is desirous to prosecute this matter and the failure to attend the court was due our human error, not the plaintiff's. 7. THAT I believe the cause list as the plaintiff that it is in the interest of justice should not be punished that this for errors matter which are not his. " be restored to that the Defendant's failure I wondered when the same was communicated Firstly, to attend Court on 2ih April 2015 was date could not how the set hearing form by way of an in written I do not believe due to the given reason. have been diarized order. Secondly, as ill-health a matter date constitutes Practice and domestic to the cause list. a valid reason. Note 35/3/1 misfortune I have serious of the RSC requires that good reasons such have to be given for a court to order restoring doubts that non-diarising of a set hearing I am not persuaded Thirdly, should not be punished acts, as an agent, Wabash Railroad on behalf Co. 370 U. S 626, 633-34 (1962) I find the American of the client. by Counsel Kapoto's which are not his. It is trite for errors contention that the Plaintiff that that case of Link v. and to be both instructive a lawyer Edward Pemba v. Rab Processors Kenyatta Nyirenda, J. and gave counsel two weeks' notice of the scheduled conference. The case concerns a review by the United States sua sponte dismissal of a diversity had filed the matter, the District illuminating. District Court's the Appellant conference day of the conference, be unable to attend the conference, was busy preparing not attend the conference appear and prosecute Supreme Court made the following some documents and the Distric the appellant's counsel called In reviewing the claim. pertinent observations: negligence Supreme Court of a case. Six years after Court scheduled a pre-trial On the the court to say that he would giving the court the impolitic reason that he for the State Supreme Court. The attorney did the matter for failure to the t Court dismissed the District Court's dismissal, no merit to the contention that dismissal chose his attorney as his representative of the acts or omissions would be wholly inconsistent with claim of the petitioner's penalty on the client. in the action, and he of this freely selected our system of representative imposes an uniust conduct unexcused of his counsel's voluntarily "There is certainly because Petitioner cannot not now avoid the consequences agent. litigation, considered -Emphasis notice supplied by underlining Any other notion of all facts, in which each party is deemed bound by the acts of his lawyer-agent to have 'notice and is upon the attorney" of which can be charged system, in Link v. Wabash Railroad as it is and as we know it, would simply collapse I cannot agree more with the reasoning Our judicial were to adopt, as a matter of unqualified (principal) appointed the Supreme Appeal No. 29 of 2005 (unreported) James Banda & Other, MSCA Civil Appeal No. 7 of 2017 (unreported). Co., supra. if courts the notion that a client in my view by two decisions Yasin v. Rep, MSCA Criminal can avoid the consequences agent (legal Court of Appeal in Maclcmonce of the acts or omissions practitioner). of his or her freely I am fortified and National principle, Bus Limi�ed v. Michael of In the circumstances dismiss the Defendant's Summons with costs. and by reason of the foregoing, I have no option but to Pronounced Malawi. in Chambers this I ih day of May 2017 at Blantyre in the Republic of Kenyatta JUDGE Nyirenda 3