Chiwale v Gabriel & Anor. (Personal Injury 354 of 2014) [2017] MWHC 97 (12 May 2017)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALA WI PRINCIPAL REGISTRY PERSONAL INJURY CAUSE NO. 354 OF 2014 BETWEEN: ISAAC CHIWALE -AND- PLAINTIFF SHARMA GABRIEL PRIME INSURANCE COMPANY LTD 1ST DEFENDANT 2ND DEFENDANT CORAM: ANNELINE KANTHAMBI ASSISTANT REGISTRAR Mr. R. Ng'omba for the Plaintiff Respondent Absent Mr. M. Manda Court Clerk ORDER ON A SUMMONS TO STRIKE OUT DEFENCE The Background: This is the order on the summons tostrikeout order for directions. neither It is made pursuant to the court's arguments filed in support nor skeleton an affidavit thedefence for failure to comply with the There is jurisdiction. inherent of the application. argues that The plaintiff 2015 and required time of the application with the order, hence the application comply with the court's on the 20th the parties order for directions. the order for directions to file and exchange was made on the 24th of February witness statements. of October 2015, the plaintiffs had not yet complied That at the to strike out the defendant's defence for failure to of the summons was duly effected on and acknowledged Service counsel Destone and Company. They however were absent from the proceedings no reasons were advanced for their absence. by the defendant's and Counsel for the applicant the application was made but only stated that under made no specific reference to any rule or law under which the inherent jurisdiction of the 11Page rt's order for direction t court. The said cou eXChange of witness statements time of the hearing of the hearing on the 20th October 2015 the defendants not complied with the order. The present summons were duly served on the defendants but they did not was made on the 24th of February 2015, make an appearance. and as at the o had allegedly hat was not complied with is in regard t The Rule Applied: Order 2of the Rules of the Supreme Court provides the following on the effect of non­ compliance with the Rules: or purporting to begin any proceedings done or left undone, been a failure 'YI) where, in the beginning stage in the course of or in connection of anything these rules, whether in respect of time, place, manner, form or content, other respect, the proceedings, order therein. shall be treated as an irregularity any step taken in the proceedings with any proceedings, or any document, the failure of or in any or at any judgment or there has by reason and shall not nullify to comply with the requirements as is mentioned as it thinks just, set aside (3), the Court may, on the ground that there has been (2)subject to paragraph such a failure otherwise which the failure judgment or order therein or exercise amendments (if any) to be made and to make such order (if any) dealing with the proceedings in paragraph 1 and on such terms as to costs or either wholly or in part the proceedings or any document, any step taken in those proceedings its powers under these rules to allow such generally as it thinks fit." occurred, in On the application J, in the case of Stella Masamba v Henry Sibale [2012] MLR@ 428, had this to say: of Order 2 rule (1) of the Rules of the Supreme Court, Manyungwa taken as a whole show that Order 2 rule 1 should be applied in order, so far as is reasonable " .. the authorities liberally caused to one party by mindless adherence to technicalities procedure. irregularities given to the Court by Order 2 r 1 is a power to cure and proper to prevent injustice Thus the power consisting of failures in the rules of to comply." being In view of the foregoing, I am of the view that striking On the authority of the said rule, I hereby order the would occasion an injustice. defence to file with the court the said witness statement and serve the same on the plaintiff will treat the defence of May 201 7. Failure to comply with by 3 pm on Tuesday, the 23rd as struck out for failure off the defence at this point to comply with an order for directions. this order Made in Chamber this 12th day of May 2017. Annelin�bi Assistant Registrar 21Page