Mbale v Southern Bottlers Limited (Civil Cause 300 of 2015) [2023] MWHCCiv 37 (18 October 2023)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI MZUZU DISTRICT REGISTRY CIVIL DIVISION CIVIL CAUSE NO. 300 OF 2015 BEFORE HONOURABLE JUSTICE KONDOWE BETWEEN JEALOUS MBALE........sccscssssssssocsssessesscssvsscsessseasssscsesssesesseseccscesecece, PLAINTIFF SOUTHERN BOTTLERS LIMITED i osiccnviansannscars nenenmonneveveusvancensxevencas DEFENDANT CORAM: HONOURABLE JUSTICE MAUREEN KONDOWE Phiri, Counsel for the Plaintiff Mkandawire, Counsel holding brief on behalf of Counsel Kambale, Counsel for the Defendant Mr K. Thadzi, Senior Court Clerk JUDGMENT 1. BACKGROUND TO THIS JUDGMENT LI The Plaintiff commenced this legal action by specially-endorsed summons dated 6" November, 2015 against the Defendant which allegedly at some alleged point allegedly with effect from 24" October, 2017 is alleged to have changed its name from Carlsberg Malawi Limited to Castel Malawi Limited. 1.2 1.3 1.4 La By his Statement of Claim dated 5'" November, 2015 the Plaintiff alleged that he sought the following reliefs from this court against the Defendant: (a) Alleged damages for pain and suffering that allegedly stemmed from an alleged undisclosed disease after he allegedly drank the contents of a bottle of Coca Cola that he allegedly bought from a Tuck Shop allegedly located within the premises of this court. The Plaintiff alleged that the Defendant was the manufacturer of that bottle of Coca Cola; (b) alleged damages for alleged inconvenience allegedly suffered from alleged visits to undisclosed clinics and to allegedly follow up with the Defendant as he allegedly sought some alleged redress from it whose particulars he did not plead: (c) alleged compensation for alleged breach of an alleged duty of care; (d) alleged special damages for alleged medical expenses (to be assessed) (quoted verbatim); and (e) alleged costs of this action. By its Defence dated 3" December, 2015 the Defendant denied that it was liable to pay the Plaintiff the alleged damages and costs of this action as he alleged. The Defendant also denied that it manufactured the alleged bottle of Coca Cola whose alleged contents the Plaintiff allegedly drank. On 1* March, 2019 the Defendant filed an amended Defence which bore the date of 28" February, 2019. This “amended Defence” did not at all particularize by underlining in red ink the alleged matters that the proposed amendment(s) were for. This “amended Defence” got served on the Plaintiff on 5" March, 2019. The Plaintiff accepted its service on the same day. Attached to this “amended Defence” was a List of Documents dated 28" F ebruary, 2019. A sworn statement also dated 28 February, 2019 that verified the “amended Defence” and the List of Documents was also attached to the “amended Defence”. In terms of the rules of civil procedure that applied to the resolution of this dispute as at 6" November, 2015 this matter should have proceeded to and with mandatory mediation in compliance with rule 7(1) of the Courts (Mandatory Mediation) Rules, 2004. This rule stated that within 14 days after the service of 2 1.6 L? 1.8 the defence in respect of actions begun in the High Court a plaintiff was obli ged to file with the Assistant Registrar (ADR) a notice in Form A in Schedule I stating the name of the mediator and the date of the mediation session. By order of this court dated 11" November, 2016 this matter got exempted from the mandatory mediation. The order did not indicate the authority of law and the grounds of law on the basis of which this matter got exempted from the mandatory mediation. There is no evidence on the file of this court that confirms that the perfected order dated 11" November, 2016 through which this matter got exempted from the proceedings for the mandatory mediation got served on the Defendant. The Plaintiff filed his List of Documents dated 22"! October, 2018 on 24th October, 2018. He also simultaneously filed an amended Statement of Case also dated 22" October, 2018. Through the Initial Directions dated 26" October, 2018 DeGabriele J. gave the Plaintiff and the Defendant the initial directions for the handling of this matter pursuant to Order 5 rule 20 of the Courts (High Court) (Civil Procedure) Rules, 2017 (“the 2017 Rules”). The Defendant then proceeded to file its Trial Checklist dated 1° February, 2019 whose service the Plaintiff accepted on 12" February, 2019; On 24" October, 2018 the Plaintiff filed a court document that showed that he proposed to add a party named Castel Malawi Limited. The Plaintiff indicated that he proposed to add this party to this legal action on the alleged ground that Southern Bottlers Limited was allegedly acquired by Castel Malawi Limited which allegedly listed Fanta Orange as one of its alleged brands. The Plaintiff had earlier on through his amended Statement of Case stated and alleged that he had allegedly drank Fanta Orange and not Coca Cola as he had earlier alleged in his Statement of Claim dated 5" November, 2015. This proposal to add a party document was filed in this court together with a sworn statement dated 22% October, 2018 that verified facts for the proposed addition of a party. It was on this same date of 24" October, 2018 that the Plaintiff also simultaneously filed his List of Documents with this court. 3 1.9 By Notice of Scheduling Conference dated 24" October, 2018 this matter got set down for a Scheduling Conference which was proposed to take place on 15% February, 2019. This proposed Scheduling Conference did not take place due to that the Plaintiff and the Defendant drew up and filed with this court a Consent Order and Directions in Respect of a Scheduling Conference dated 15% February, 2019, 1.10 On 6" June, 2022 the Plaintiff filed his Trial Bundle dated 2"4 June, 2022. This Trial Bundle contained the following documents: (a) A Chronology of Events; (b) a Summons with the amended Statement of Case; (c) the “amended Defence”: (d) the Consent Order and Directions in Respect of a Scheduling Conference; (e) a List of Witnesses for the Plaintiff; (f) witness Statement of the Plaintiff; (¢) a Sworn Statement that verified the Witness Statement of the Plaintiff; (h) witness Statement of Misheck Phiri; (i) a Sworn Statement that verified the Witness Statement of Misheck Phiri; (j) skeleton Arguments and; (k) a List of Authorities, This Trial Bundle was served on the Defendant on 13" June, 2022. The Defendant accepted this service. 2s APPLICATION FOR AN ORDER TO DISMISS THIS MATTER FOR WANT OF PROSECUTION ALLEGATIONS 24 The Defendant filed an application for an order to dismiss this matter for want of prosecution dated 16" June, 2022, Through this application the Defendant sought this order from this court. The Defendant did not particularize the grounds on which it sought this order in its application. The Defendant brought this application before this court pursuant to Order 12 rule 54 of the 2017 Rules. The application was supported by a sworn statement dated 26" April, 2022. Counsel for the Defendant swore the application supporting sworn statement. 3. APPLICATION SUPPORTING SWORN STATEMENT ALLEGATIONS 34] Through the Application Supporting Sworn Statement dated 26" April, 2022 the Defendant alleged the following matters against the Plaintiff: 3.1.1 Paragraph 3 of the Application Supporting Sworn Statement alleged that the Plaintiff allegedly commenced this legal action on 5'" November, 2015. He allegedly sought from the Defendant alleged damages for pain and suffering and inconvenience in respect of an alleged injury that he allegedly suffered on or about 24" October, 2014; 3.1.2. Paragraph 4 of the Application Supporting Sworn Statement alleged that the Defendant served a Defence on the Plaintiff on 4¢ December, 2015. The Plaintiff allegedly filed an amended Statement of Case and Initial Directions allegedly on 24" October, 2018. He allegedly served these court documents on the Defendant on allegedly 8" January, 2019: 3.1.3. Paragraph 5 of the Application Supporting Sworn Statement alleged that this matter was allegedly set down for an alleged Scheduling Conference on 15" February, 2019 before DeGabriele J. The Plaintiff and the Defendant then allegedly drew up a Consent Order for Directions which allegedly also included the alleged amendment of the Statement of Claim; 3.1.4 Paragraph 6 of the Application Supporting Sworn Statement alleged that on allegedly 28" February, 2019 the Defendant allegedly filed and allegedly served its alleged “amended Defence” and List of Documents on the Plaintiff; 3.1.5 Paragraph 7 of the Application Supporting Sworn Statement alleged that the Plaintiff had not allegedly taken any further step to allegedly prosecute this matter allegedly since 28" February, 2019; and 3.1.6 Paragraph 8 of the Application Supporting Sworn Statement alleged that a trial at this point allegedly posed as an injustice to the Defendant. A lot of time has allegedly passed since this alleged date of 28" February, 2019 with a high chance of evidence having allegedly been lost. 4, APPLICATION OPPOSING SWORN STATEMENT ALLEGATIONS 4.1 The Plaintiff filed an application Opposing sworn statement to the application for an order to dismiss this matter for want of prosecution. he Defendant objected to 5 the filing of this opposing sworn statement to this application and its use in the proceedings for the hearing of its application. The Defendant so objected to the filed opposing sworn statement on two main grounds which it alleged to be as follows: 4.1.1 The Plaintiff allegedly served the Application Opposing Sworn Statement on it allegedly on 29" June, 2023 after allegedly 4 o’clock in the afternoon without the Plaintiff having allegedly complied with the legal requirement of Order 18 rule 20 of the 2017 Rules. Order 18 rule 20 of the 2017 Rules allegedly requires sworn statements to be served not later than 2 clear days before the occasion for using them arises; and 4.1.2 The Plaintiff did also allegedly not comply with the alleged mandatory legal requirement of Order 20 rule 1 of the 2017 Rules. Order 20 rule | of the 2017 Rules allegedly mandatorily requires that skeleton arguments to be relied upon in an interlocutory application must be filed with this court and served at least 2 days before the hearing of the application. The Plaintiff orally argued his response to the objection that the Defendant raised with regard to the use by him of the application opposing sworn statement in these proceedings that he allegedly served on it. The Plaintiff admitted that he failed to comply with the respective alleged legal requirements of Order 18 rule 20 and Order 20 rule 1 of the 2017 Rules. The Plaintiff alleged that his admitted non- compliance with these alleged procedural rules was allegedly due to alleged administrative challenges that this file allegedly encountered with the Legal Aid Bureau. This file was allegedly always handled on behalf of the Plaintiff by Counsel who allegedly proceeded on study leave. Counsel for the Plaintiff further alleged that the Legal Aid Bureau has an alleged institutional arrangement for files that get handled by Counsel who allegedly proceed on alleged study leave. These files are allegedly left unattended to within the Bureau until some step on them is taken in their prosecution before this court. It is allegedly these alleged taken steps that then allegedly prompt the alleged assignment of such files to other Counsel for their continued handling within the Legal Aid Bureau. The 6 Plaintiff alleged that with regard to this file the alleged unfortunate development that allegedly also affected it was allegedly that Counsel to whom it allegedly got assigned (presumably on being served with the application for an order to dismiss this matter for want of prosecution) allegedly resigned from the Legal Aid Bureau after allegedly securing other alleged employment. He allegedly only realized that the file for the Plaintiff had allegedly not been attended to as he allegedly handed it over to Counsel who then appeared before this court to attend to the present application. The alleged Counsel who allegedly resigned and allegedly handed over this file to Counsel who appeared before this court to attend to this application allegedly drafted the Application Opposing Sworn Statement that got served on the Defendant. At the time of hearing the application for the order to dismiss this matter for want of prosecution on 30"" June, 2023 the Application Opposing Sworn Statement that the Plaintiff served on the Defendant was not available on the court file. Nor was any proof of its service on the Defendant. None of these court documents was also available on the court file at the time that this court finalized and delivered this judgment. THE EVIDENCE 5.1 The Defendant did not produce and exhibit any document of evidence to its Application Supporting Sworn Statement dated 26" April, 2022 for the order to dismiss this matter for want of prosecution. 5.2 Having allegedly filed and allegedly served late but not brought any proof of service of the Application Opposing Sworn Statement to the Application for the Order to Dismiss this Legal Action for Want of Prosecution the Plaintiff did also not bring any evidence in Opposition to this application. THE LAW ON ORDERS TO DISMISS MATTERS FOR WANT OF PROSECUTION 6.1.1 The Defendant brought its application for the order to dismiss this legal action for want of prosecution pursuant to Order 12 rule 54 of the 2017 Rules. Order 12 rule 54(1) of the 2017 Rules states that a defendant in a proceeding may apply to this court for an order to dismiss a proceeding for want of prosecution where a claimant is required to take a step in the proceeding under these rules ... not later than the period specified under these rules and does not do what is required. Order 12 rule 54(2) of the 2017 Rules further states that this court may dismiss the proceeding or make any other order it considers appropriate. 6.1.2 This court takes the view that the Defendant erred in law in bringing the application for the order to dismiss this matter for want of prosecution pursuant to Order 12 rule 54 of the 2017 Rules for reasons that this judgment highlights. 7. OTHER LAWS OF RELEVANCE TO THIS APPLICATION 7.1 ON RULES OF CIVIL PROCEDURE THAT APPLY TO COURT MATTERS COMMENCED IN THIS COURT BEFORE 38 OCTOBER 2017 THE COMMENCEMENT DATE FOR THE 2017 RULES 7.1.1 Order 35 of the 2017 Rules contains transitional provisions. Order 35 rule 3(1) of the 2017 Rules is as follows: “Where any step in compliance with the practice and procedure under section 29 of the Act, (“the existing procedure rules”) has been taken in an existing proceeding, before the commencement date, in particular one that uses F orms or other documentation required by the existing procedure rules, the procedure shall proceed in the manner specified under the existing procedure rules.” Order 35 rule 3(2) of the 2017 Rules further states as follows: “Any step which a party is required to take in response to something done by another party in accordance with the existing procedure rules shall be in accordance with those rules.” 8 7.1.3. In the case of Sheriff of Malawi and Attorney General v. Universal Kit Supplies ex parte Universal Kit Supplies MSCA Civil Appeal Number 6 of 2017 (Being High Court (Lilongwe Commercial Division) Commercial Case Number 4 of 2015) the Supreme Cen of Appeal held as follows: “This judicial review action commenced in 2011 before the Courts (High Court) (Civil Procedure) Rules [2017] were effective. It is the existing procedure rules- the High Court (Commercial Division) Rules- not the Courts (High Court) (Civil Procedure) Rules, 2017 that apply.” 7.2 ON THE FILING AND SERVICE OF A NOTICE OF INTENTION TO PROCEED AFTER A DELAY OF A PERIOD OF ONE YEAR UNDER THE RULES OF THE SUPREME COURT 7.2.1 Order 3 rule 6 of the Rules of the Supreme Court which co-exist with the 2017 Rules in their application to civil matters in this court states that where a year or more has elapsed since the last proceeding in a cause or matter the party who desires to proceed must give to every other party not less than one month notice of the intention to proceed. 8. DETERMINATION OF THE APPLICATION OF THE DEFENDANT 8.1 Through the application for an order to dismiss this legal action for want of prosecution dated 16" June, 2022 the Defendant sought this order from this court. The Defendant filed skeleton arguments dated 27" April, 2022. The Plaintiff filed none. This court declines to grant the Defendant the order to dismiss this matter for want of prosecution for the following reasons: 8.1.1 This court observed that the prosecution and defence of this application specifically and of this legal action generally encountered untold incurable irregularities. One glaringly-incurable irregularity that this court found with regard to the present application specifically and to this legal action generally was as follows: There is no dispute that the Plaintiff commenced this legal action against a Defendant named Southern Bottlers Limited by specially-endorsed 9 summons dated 6" November, 2015. It follows from this indisputable fact alone that the 2017 Rules do not apply to this legal action. It is so found. This court makes this finding 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”) has been 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 shall proceed _in the manner specified under the existing procedure rules. Order 35 rule 3(2) of the 2017 Rules further states that a step which a party is required to take in response to something done by another party in accordance with the existing procedure rules shall be in accordance with those rules. This court is at a total loss as regards how both the Plaintiff and the Defendant were able to proceed with and carry on the prosecution and defence of this matter using hybrid rules of civil procedure that combined the Rules of the Supreme Court which applied and continue to apply to all civil matters heard and determined in this court that got filed before 3™ October, 2017 the commencement date for the 2017 Rules and the 2017 Rules simultaneously. This cannot be. More so considering that the Supreme Court of Appeal already delivered its opinion on this matter in the case of Sheriff of Malawi and the Attorney General v. Universal Kit Supplies ex parte Universal Kit Supplies fully cited above in which it emphatically held that the Rules of the Supreme Court apply to cases that were commenced before this court before the 2017 Rules became effective procedural law for civil matters on 3" October, 2017. This Supreme Court of Appeal decision is a binding precedent on this court. It is so ordered. It is a sufficient judicial basis on which this court can opt to rest this judgment without it being required to comment any further and express itself on significant matters of law that affected how the Plaintiff continued with the prosecution of his case before this court following its commencement on 6! November, 2015 and the Defendant proceeded with its defence. It is so observed. 10 8.2 In order for this court to completely put this matter to its rest it is important for this court to comment on what in its considered opinion went amiss with the prosecution and defence of this matter before this court from an examination of the documents that are on the file of this court. This court takes this position against the background that it has no Jurisdiction known at law to salvage this legal action on behalf of the Plaintiff. It is so ordered. More so considering the finding of this court that the Plaintiff prosecuted this matter using hybrid rules of civil procedure in circumstances in which he had legal representation. It is so ordered. This court observed that the last document that this court issued whose service the Defendant accepted on 13" June, 2022 was the Plaintiff's Trial Bundle dated 2™4 June, 2022. This was filed by Counsel for the Plaintiff on the legal basis of an authority of law that was not particularized. The exact date on which the Defendant served the Plaintiff with the Defence dated 3" December, 2015 is not clear from an examination of the documents that are on the file of this court. The Defendant never provided this court with proof of its service. Despite this fact this court takes the view that the Plaintiff should have then set this matter down for its mandatory mediation pursuant to rule 7(1) of the Courts (Mandatory Mediation) Rules, 2004, Rule 7(1) of the Courts (Mandatory Mediation) Rules, 2004 stated that within 14 days after the service of the defence in respect of actions begun in the High Court a Plaintiff was obliged to file with the Assistant Registrar (ADR) a notice in Form A in Schedule | stating the name of the mediator and the date of the mediation session. The Courts (Mandatory Mediation) Rules, 2004 were in existence and they applied to this legal action as at 4" December, 2015 the date the Defendant filed its defence. It 1s so found. These rules continued to exist and only got revoked by Order 35 rule 16(d) of the 2017 Rules with effect from 3" October, 2017. It is also so found. The Plaintiff opted instead to apply for and obtain an irregular order through which this matter got exempted from the mandatory mediation dated 11" November, 2016 ex parte considering that in the ex parte summons for the application for this order dated 11" November, 2016 one Dyson Moyo was indicated as its deponent. However, the application supporting affidavit dated 7" October, 2016 was sworn by the Plaintiff himself. Clearly from the filing of the Defence dated 3™ December, 2015 on 4" December, 2015 to the filing of the ex parte summons for application to exempt this matter from mandatory mediation dated 11" November, 2016 a period of 11 almost close to a year passed without the Plaintiff having prosecuted this matter. It is so found. This court further observed that the Initial Directions dated 26" October, 2018 were clearly issued by DeGabriele J. What is not clear from an examination of the documents that are on the file of this court is whether or not they got so issued based on a document that the Plaintiff filed with this court or of the court’s Own motion. This in the considered opinion of this court is the point in time at which the further prosecution and defence of this matter became untenable at law. Neither the Plaintiff nor the Defendant applied to this court for an order to set these directions aside on the ground of Order 35 rule 3(1) and (2) of the 2017 Rules which clearly required this matter to be prosecuted and defended using the Rules of the Supreme Court which were the legal basis on which the Plaintiff commenced this legal action. It is so found. The Plaintiff did nothing again about the further prosecution of this matter in this court until 24" October, 2018 when he most irregularly filed not only a document without any heading or its authority of law through which he proposed to add Castel Malawi Limited as a party to this legal action dated 22" October, 2018 but also a Sworn statement that verified the facts for the proposed addition of a party pursuant to Order 18 rules 2, 3 and 6 of the 2017 Rules also dated 22"4 October, 2018 and a Notice of a Scheduling Conference pursuant to Order 14 of the 2017 Rules dated 24" October, 2018. Save for the Consent Order and Directions in Respect of a Scheduling Conference dated 15% F ebruary, 2019 the Plaintiff never again took any further step in the prosecution of this matter until the filing of the Trial Bundle dated 2" June, 2022. A period of more than two years passed between 15!" February, 2019 and 2" June, 2022 without the Plaintiff having prosecuted this matter any further which prompted the Defendant on being served with the Trial Bundle dated 2" June, 2022 to then bring the present misconceived application. It is so found. The Plaintiff never also filed and served on the Defendant any notice of his intention to proceed with the prosecution of this matter pursuant to Order 3 rule 6 of the Rules of the Supreme Court one month prior to deciding to file and serve the misconceived Trial Bundle dated 24 June, 2022. It is also so found. 8.3 This court finds and holds that the Rules of the Supreme Court are the correct rules of civil procedure for the prosecution, defence, determination and disposal of the present 12 application. It is so found. Order 2 of the Rules of the Supreme Court deals with non- compliance with these rules. Order 2 rule 1(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 or left undone been a failure to comply with the requirements of these rules whether in respect of ... manner, form or content or in any other respect the failure must be treated as an irregularity that must not nullify the proceedings. Order 2 rule 2(2) of the Rules of the Supreme Court further states that subject to paragraph (3) this court may on the ground that there has been such a failure as is mentioned in paragraph (1) and as to such terms as costs or otherwise as it thinks just set aside either wholly or in part the proceedings in which the failure occurred ... This court sets aside the application for the order to dismiss this legal action for want of prosecution pursuant to Order 2 rule 2(2) of the Rules of the Supreme Court on the ground of its incurable irregularity the Defendant having brought it before this court pursuant to Order 12 rule 54 of the 2017 Rules, rules which this court has found and held not to be applicable to this legal action which the Plaintiff commenced on 6" November, 2015. It is so ordered. This court also sets aside pursuant to the same Order 2 rule 2(2) of the Rules of the Supreme Court the document without a heading and its authority of law dated 22" October, 2018 through which the Plaintiff purported to add Castel Malawi Limited as a party to this legal action. It is so ordered. The Plaintiff neither applied for nor got granted leave or any order of this court through which this proposed addition of Castel Malawi Limited could have lawfully proceeded in the specific circumstances of this legal action. It is so found. The Plaintiff should have applied for the leave of this court pursuant to Order 15 rule 4 of the Rules of the Supreme Court for Southern Bottlers Limited and Castel Malawi Limited to be joined together as Defendants to this legal action if he so minded. It is so ordered. In the alternative the Plaintiff was at liberty pursuant to Order 15 rule 6(2)(b)(i) of the Rules of the Supreme Court to apply for an order of this court to add Castel Malawi Limited as a party to this legal action if he also so alternatively minded. It is so ordered. The Plaintiff chose not to take this opportunity. It is so found. 13 8.4 This court dismisses the legal action within which this misconceived application for an order to dismiss this matter for want of prosecution got brought before this court on the ground of the incurable irregularity that this judgment highlights in its subparagraph 8.1.1. It is so ordered. It is in the considered opinion of this court not possible to prosecute, defend, determine and dispose of any civil matter in this court using hybrid rules of civil procedure that simultaneously combine aspects of Rules of the Supreme Court and those of the 2017 Rules. It is so ordered. More so considering Order 35 rule 9 of the 2017 Rules which is clear that cases commenced on or after 3" October, 2017 the commencement date for the 2017 Rules must proceed on the basis of these 2017 Rules. It is so ordered. 8.5 One concerning observation that this court made over what procedurally transpired in the handling of the prosecution and defence of this legal action relates to how the professional work of the legal practitioners for both sides whom the Malawi Law Society licensed and regulates pursuant to section 30 of the Legal Education and Legal Practitioners Act, 2017 (Cap. 3:04 of the Laws of Malawi) (“the LELPA, 2017”) got supervised within not only the Legal Aid Bureau but also the private law firm out of which the Defendant engaged its Counsel. Section 30(1) of the LELPA, 2017 states that the Malawi Law Society issues annual licences to legal practitioners on production of a certificate to practise issued under section 22 of this Act and on payment to it of the relevant fees that it determines from time to time. Rule 7(b) and (c) of the Legal Practitioners Practice Rules which section 122(5)(a) of the LELPA, 2017 saved deals with supervision of principal office and branch offices. This rule states that a legal practitioner who has established a legal firm whether as a sole practitioner or in partnership with other legal practitioners must ensure that the principal office of the firm and its every branch office is and can at all times be seen to be properly supervised in accordance with the following minimum requirements; that is to say ... (b) that the staff employed at every such office are so supervised, directed and controlled and so appear as to portray to the public a respectable image and the due dignity of the legal profession; and (c) that at every such office there are adequate requisite facilities for consultation with clients and that there is an ample collection of such law books and other reference 14 materials for legal research as will enable the legal practitioner readily to render appropriate professional service to clients. The Legal Aid Bureau which legally represented the Plaintiff in this legal action provides legal aid in civil matters pursuant to section 19(1)(a) of the Legal Aid Act (Cap. 4:01 of the Laws of Malawi) (“the Legal Aid Act”). This section states that the Legal Aid Bureau must develop and maintain a service that enables any person involved in civil proceedings as a litigant ... and who fulfils the requirements of section 20 to access general information about the law and procedure in civil matters and the provision of legal services. The Legal Aid Bureau is a statutory body that to the knowledge of this court has more than one Counsel under its employment. This court therefore found it most puzzling to learn about the admitted existence of the admitted internal administrative arrangement within the Legal Aid Bureau through which files for clients with pending court cases admittedly remain unattended to due to that Counsel that previously worked on them is allegedly away on alleged study leave. More so with regard to the present legal action in which the Legal Aid Bureau was legally representing a Plaintiff. It is so found. 8.6 This court has set aside the application for an order to dismiss this matter for want of prosecution on the ground of its incurable irregularity for the reasons stated in this judgment. This court has also dismissed the legal action within which this application got brought before this court. Section 30 of the Courts Act (Cap. 3:02 of the Laws of Malawi) states that the costs of court proceedings are in the discretion of a court. Order 31 rule 3(1)(a)(b) and (c) of the 2017 Rules amplifies this matter. Order 31 rule 3( 1)(a) of the 2017 Rules states that this court has discretion as regards whether or not costs must be paid by one party to another. Order 31 rule 3(1)(b) of the 2017 Rules states that this court has discretion to decide the amount of any payable costs. Order 31 rule 3(1)(c) of the 2017 Rules states that this court has discretion to decide when costs must be paid. Order 31 rule 3(2) of the 2017 Rules states that where this court decides that costs must be paid, an unsuccessful party is ordered to pay the costs of a successful party. This court notes that the Plaintiff was legally-aided for him to commence this legal action before this court. This court exercises its discretion on costs to make no order of costs of this application and of the dismissed legal action. It is so ordered. 15 THE RIGHT OF THE PARTIES TO APPEAL AGAINST THIS JUDGMENT 9.1 The Plaintiff and the Defendant have a right to appeal against this judgment pursuant to section 21 of the Supreme Court of Appeal Act (Cap. 3:01 of the Laws of Malawi). This provision states that an appeal lies to the Supreme Court of Appeal from any judgment of a High Court or Judge in any civil cause or matter, This court confirms that the Plaintiff and the Defendant are at liberty to appeal against this judgment before a full Bench of the Supreme Court of Appeal in compliance with section 23(1)(b) of this Act. It is so ordered. Section 23(1)(b) of the Supreme Court of Appeal Act states that any person who desires to appeal from this court to this higher Court must in such manner as is prescribed by the rules of court give notice to the Registrar of the High Court of the intention to appeal within 6 weeks of the delivery of the judgment that is to be appealed against. This court grants the Plaintiff and the Defendant leave to appeal against this judgment to the Supreme Court of Appeal. It is so ordered. Delivered at Mzuzu this \S day of 0 CRB TA 2023 M. KONDOWE —™ JUDGE 16