Sadyaluna v MCP (Civil Cause 1945 of 1994) [1996] MWHCCiv 13 (22 February 1996)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NUMBER 1945 OF 1994 BET WEEN : F N SADY AL UND A ................................... PLAINTIFF MALAW I CON GRES S PARTY .......................... DEFENDANT AND COR AM: QOTO, DEPUTY REGISTRAR Mbendera of Counsel for the plaintiff George Kaliwo of Counsel for the defendant R U L I N G QOT O DEP UTY REGISTRAR I have before s ummons by the plaintiff for It admis sio ns. Chizez e and Grant Sadyalunda. is supported by affidavits of Zangaph e judg em ent on Jushua is to The bac kground the application cl aimed against that by a writ of the Sum mons and s tatement of claim issued on 13th October, 199 4, for the defendant special dam age s pl a i nt if f conve rsi on of the plaintiff 1 s estates known as Chikumbut s o 1 and . 2, K45 0,000 f or conversion of motor vehicles, a Toyota t r uck and tr a i l e r, To yo ta land cruser and a peugeot 504 saloon, K2,7 00,000 fo r l os s of profits in respect of the estates over a per io d of 18 ye a rs at an a verage profit of K150,000 per amnnum and K3, 000,000 th e period fo r otherw ise r emi aning expired under the lease. loss of profits pro spe ct ive respect of in HIGH cou R, I -:.. JBRARy - 2 - of th e "general st atement i njur ie s s ustained claim for a period of October 1976 The plai ntiff further claimed against the defendant an d I quote false fr om f or im prison ment to July 198 1 for in pri s on, for shock, di stre ss and pe r sonal the s olitary co nfin ement, phy schologica l tr a uma los s of conso rtium, dismiss a l of he r childr e n fr om scho ol and childr e n det entio n of ho meless the for defam ati on of des titute and wrongfully marginalised and c haracter . " in respect of renderin g damages husband he r S e r v i c e o f the defe ndan t do pay t he re be i ng no notice of t h e w r i t o f S u mm· o n s a n d t h e s t at e m e n t o f c 1 a i m was by post an d in t enti on to defend gi ve n by the defen dant, it was on 8th November 199 4 , ad judged the p laintiff KS,212,5OO. O O special tha t da mages, gener al damages to be assessed by the court a nd co sts of the proce e din gs to be taxed if not agreed. Exe cution was however sta yed by the court on 22nd November, 1994 on conditi on th at the de fendant file d an a pplication to s et aside the defa u l t jud gement wit hin 14 day s from that date. The parties also agr eed th at the de fendant sho uld s erve a defence to the plaintiff's claim . The j udgem ent on pla intif f for ad missio n on 29th March 1995., se veral t imes and mainly due to Mr Kaliwo's engagement i n what is kno wn as the "Mwanza Trial" which also involved som e memb ers of the defe ndant. the present summons for summary sumons was adjo urn ed took ou t The the ground Whe n we s et to hear the summ ons on 27th Oct obe r , 19 95, Mr th at he was Kal iwo did ap ply for an adjournment on app earing in the "Mw a nza Trial. 11 Let me at this junc t ur e mention that the "Mwa nz a Tri a l" hearing covered almost the wh o le of 1995. the Mr Mbend e ra oppo s e d the appl icati o in for an adjournme nt on t hat t her e had be e n too many adjournments al r ead y and his gro und the c ase. Af te r a rgument cli ent was anx iou s a nd and with the c on se nt of both parties, it was agree d t hat I should adj ourn This I and I ad jo~rned the hearing of the summons to 1s t De cember, d i d t he hearing of the summons to a s pecific dat e . impatien t a bou t - 3 - 199 5 at 8 . 30 a .m . a nd in my Chambers. On this dat e Mr Mbe ndera the di d not ap pea r and Mr Kal iwo prayed for an adjour nment of hea ring of the sum mons sine die with liberty to the plai nti ff to re store i t . I granted the application. the day a nd Mean wh ile the p l aintif f had filed a notice of adjour nme nt of It was not heard the summo ns re turnable on 13th December 1995. in yet anothe r noti ce of on adj ournme nt re tur nable on 22nd December, 1995 at 9 .00 o' clock. It is wh at ha ppened on this day that has given a rise to this ru ling. the plai ntiff put As I s aid the hearin g of the notice was set for 9 o 'c lo ck in the foren oon. Mr Mbendera told the court that the sc hed uli ng of the heari ng of the summons on that date was by way of agre ement t he parties . Mr Kaliwo came to Court befo re 9 o 'clock bet ween but had t hat he had forgotten the file in re lati on to t o l d him in his motor veh i cle and he wa s going bac k to c ollect thi s case l eft at 8 . 45 am a nd we waited for him unti l 25 mi nutes He it. to 10 o' cl ock to tha t no pr oceed wi th I rea son wa s giv en why Mr Kaliwo did not come up to that ti me, i t a nd Mr sa w no Mbe ndera s ummary jud gement . r e a son to refuse t he application. the that morning. Mr Mbendera move d the applicat i on. the hearing of t he Se eing address me I grant ed summons cou rt bega n for to on In t he mi ddle of the address, Mr Kaliwo entered the Cha mbers and he he ar d part of the address by Mr Mbendera . When i t c ame for Mr Kaliwo to reply, he said h is cli ent s, Mr Te mbo an d Mr Chakuamba had not given him inst ru ctions aft er he had r eferred the summons for summary judge ment to them. In view of thi s he asked for an adjournment so t hat he ask s his cli ent ab ou t f urther i nstructions. He said this was nece ss ary in He also vie w of t he f act that the matter was an those a sai d inst ructi on s a nd without t hem, he was disabled from answ eri ng Mr time within which important one. f urther nee ded short ge t t o he - 4 - to the address summo ns of t he court on Mb endera 1 s s ummary ju dgeme nt. There en s ued an argument as to whether Mr Kali wo was to bri ng new evidence or simply make a response to t he addr ess by Mr Mbend er a. I did not make a specific ruling on this ar gument bu t I ad jo ur ned the hearing of the summons to 16th J a nua ry, 1996. On this da y, Mr Mben dera did not appear and the hear ing wa s again ad journe d t o date to be fixed, 23rd January, 199 6 wa s a date wh ich wa s fix ed for continued hearing. On in lon ge r As he came t han that. Part of the hearing proc eede d t h is day Mr Kaliwo narrated the events whic h ma de him mi ss par t of the address of Mr Mbendera on 22nd Dece mb er, 1995. In a nut s hel l he said he had forgotten his file and he ha d told He Mr Mbend e r a t hat he was going to be back in 30 minu t es tim e. in his to ok t he middle of the address he cou ld not ab sence. ap ply f or ad journment unti 1 the end of the addres s. He argued th at he so ugh t an adj ournment so that he could adduce ev ide nce in op positi on judgement on ad mis sions. He furth e r ar gued th at it was not proper for the co urt t o proceed in his absence as he had wi th i ndicate d to Mr Mbender a that he was then ap p lied f or a not her adjournment so that he adduces ev ide nce on be half of t he defendant. to the summons for summary th e he a ring of to be prese nt. summons the He The t ru t h of the matter is that the hearing of th e s ummons ha d been adj ourned on divers of occassions at the in stan ce of the de fenda nt . Th e posit i on as shown by the record of proce edi ngs in judgeme nt was filed t his act i on i s that the summons for summary in April 199 5 . imagination why up to now Mr Kaliwo It beats my ca nnot get in structi ons from his clients on this Sum mons . He has t o 22nd , be e n awa r e of De cember 199 5 , the matte r was scheduled for hearin g at 9 oclock that Mr Kal i wo had i n the f or en oon. When Mr Mbendera told me fo rgotte n to 10 oc lock. Mr Kaliwo had left court 9 oclock before and sur ely it co uld not ha ve taken him more than 30 minutes to ge t his file. t he file, we waited for him up through out 1995. to 25 minut es this Summons Co ming - 5 - If he was the starti ng i n t he court proceeding in it was past 10 a.m. se rved with a notice which is possible where it is expedient, The court ga ve hi m the Whe n he ca me the summons which opportu ni t y he did opo rtunit y to be heard on indeed minded to fi l e af fi davits not avail h ims elf of. to the hearing of the summons, he woul d have done in oppost i on there is no thing In my view, tha t bef or e 22nd December, 1995. in absence of a pa r t y wh o has irr egula r is bee n dul y Under Order 32 of the Ru 1 es of th e Supreme pre cise 1 y sta ted. t o pro ceed with Co urt, i t hea ring of the summons in the absence of party. As it i s now Mr Kal iwo must make a reply to the iddress by Mr Mbende r a . He has in not op positio n an d having heard the pla intiff, the defendants only recourse to answer tha t ad dress. Th e accpe te d r ules of evidence and practice have to be f oll owed. in my view is like that in Baker v Fur lon g (1 891)2 The posit io n, ch . D 17 2. There, a n app l ication was made by the pl a i nt iff after the defe nd ant had closed h i s case to call certain witne sse s. At pag e 184 Ra me r J. aff ida vit s the address on affid avi t s of the oportunity himself ava il ed said: tim e put to " . . . it appeared to me the that in a case application plaintiffs gra nting defe ndant's case had been closed and a rep ly beg un, shou ld esta blished, the conduct of the plaintiff's case." precedent which improper amount of a to an be making l axi ty wo uld , af t er lead l i ke thi s, in the I if in tl1is High Cou rt in This prin c iple was adopted with approval by the case of Ch ilington Agrimal {Malawi) Limited v Pe tros Kal anje, Civ il App e al No 6 of 1990 (unreported) So i n o p p o s t i o n a f t_e r c o u n s e 1 f o r cou rt on lax ity in the conduct of the case. i n th is case, allowing the defendant to put in affi davits t h e t he affidavits of the plaintiffs would le a d to im proper I take it to be t he du ty of t h e p 1 a i n t i f f h a s a d d r e s s e d . . - 6 - the to up hold l egitimate cou nse l fea rless ly jus tice . ava ilab l e Aut hul y (1991)3 All E. R. Dona ldso n M R said at p 6 12: their duty role of a Ci Vi 1 court, s ubject only The to hear dispu t es speedly. 61 0, to the court a nd interests of to I conceive thei r cl ients to to be In Lungly V N w Water speaking about del ay Lord i s "T he re was a time when the role of the cour ts •. . was to be a vail a ble, i t being left entirely to the pa rti es to dec i de sh ou ld be c ond ucted. The increase in amount of litigati on which has occured ove r a r eap praisal of t hat role." the years has given the pace at which litigation ris e the to He added that steps must be taken towards a co urt the House of Lords cont rol le d cas e management as recommended by in De pt of Tra nsport v Chris Smaller (Transport) Limited ( 19 89) 1 All E R 897 i n order to reduce delays. I ac co rd i ngly ru l e that the defendants counsel must ap ply to If he want s to l ook at in, th e record the addr ess of counse l for the plaintiff. the re cor d to see wh at transpired before he came wi 11 be mad e a vail a bl e to him. Made i n Chambers thi s 22nd February 1996, at Blan tyr e.