John v Malawi Shipping Company (Civil Cause 311 of 2015) [2018] MWHC 41 (10 May 2018)

REPUBLIC OF MALAWI MALAWI JUDICIARY IN THE HIGH COURT OF MALAWI PRINCIPAL REGISRTY CIVIL DIVISION CIVIL CAUSE NO. 311 OF 2015 LOUIS JOHN.................................................................................... CLAIMANT BETWEEN -and- MALAWI SHIPPING COMPANY............................................. DEFENDANT Coram: Honourable Mr. Justice J. M. Chirwa Mr A. M ussa............ Counsel for the Applicant Mr M isanjo.............. Counsel for the Defendant Mr. O. Chitatu............ Official Court Interpreter l RULING This is an application by the Claimant for and order that this action be restored to the cause list. Background: The Claimant commenced these proceedings by the Specially Endorsed Writ of Summons issued on the 4th day of August, 2015 claiming damages for false imprisonment, malicious prosecution and defamation o f character. This action was set down for hearing on the 23rd day o f October, 2017 at 9:00 Hours before this Court. And when the case was called for hearing on the appointed day and time, only Counsel for the Defendant was present before the court, both the Claimant and his Counsel were not present. Counsel for the Defendant then moved this Court to dismiss the action due to the Claimant’s and his Counsel’s failure to attend court. This Court proceed to grant the Defendant’s prayer and dismissed the action for want o f prosecution, after satisfying itself that no reasons had been communicated by both the Claimant and his Counsel for their failure to attend trial. Then on the 26th day of October, 2017 the Claimant took out an ex parte application to restore the action to the cause list. And upon perusing the Sworn Statement in support of the application this Court ordered that the application be brought inter parties so as to give the Defendant against whom some allegations had been made in the said statement an opportunity of being heard thereon, hence the present proceedings. The application is premised on the following grounds: 1) That Counsel for the Claimant had 3 other matters before the High Court, Principal Registry, Revenue Division, on the same day and at the same time, as per Exhibits “PTC1” and 2) That there had been an agreement between Counsel for the parties hereto made at the request of Counsel for the Defendant that the trial of the action be adjourned to a date to be fixed due to the short notice of the hearing given to the Defendant. At the hearing of the inter parties application on the 23rd day of May, 2018 the Defendant objected to the restoration of the action to the cause list on the following grounds; 1) That Order 10 Rule 3 of the Courts (High Court) (Civil Procedure) Rules, 2017 (“the said Rules”) under which the application has been brought deals with interlocutory applications and that since the action was dismissed this Rule would thus not apply; 2) That Counsel for the Claimant deliberately failed to show up when the matter was called for hearing because he should have given notice to the court that he would delay given that all the matters were coming up at the same time; alternatively, Counsel for the Claimant should have asked Counsel for the Defendant to ask for an adjournment; and 3) That the application had been filed with delay in that it was filed on the 8th day o f January, 2018 when the action was struck out on the 23rd day of October, 2017. Reliance is here made under Order 16 Rule 7(5) (a) o f the said Rules. Determination: The first ground o f objection which this Court intends to be determined is the ground relating to the Order under which the Claimant has brought his application. The inter parties application taken out by the Claimant herein states that the application has been made under Order 10 Rule 3 as read with Order 16 Rule 7(2) of the Courts (High Court) (Civil Procedure) Rules, 2017. And even Counsel for the Claimant in his oral submissions before this Court made reference to both the said Orders. This Court wishes to reproduce the said provisions as follows: First, Order 10 Rule 3, “(3) A party may apply fo r an interlocutory order at any stage, namely; before a proceeding has started, during a proceeding, or after a proceeding has been dealt with, and whether or not the party mentioned the particular relief being sought in his summons or counter claim ” And then Order 16 Rule 7(2), “(2) Where the Court strikes out the proceeding or any part o f it under this rule, it may, on application o f a party, subsequently restore the proceeding, or that part o f the proceeding that was struck out Upon a careful perusal of the foregoing provisions, this Court is inclined to concur with the submission of Counsel for the Defendant that in so far as the present application purports to have been made under Order 10 Rule 3 of the said Rules, the same has been brought under a wrong provision. It is the considered view of this Court that since the word “interlocutory” refers to a pronouncement during the course of legal proceedings or a provisional order as per the Collins Compact English Dictionary, the order being sought by the Claimant herein cannot thus be properly classified as an interlocutory order or provisional order. The present application ought thus to have been brought only under Order 16 Rule 7(2) o f the said Rules. In the premises, objection. this Court is inclined to sustain the Defendant’s first ground of Now, Order 16 Rule 7(2) o f the said Rules under which the application should have been made is linked to Order 16 Rule 7(5) of the said Rules which provides as follows: “(5) Where an application is made under sub rules (2) or (3), respectively, by a party who failed to attend the trial, the Court may grant the application only i f the applicant (a) acted promptly when he found out that the Court had exercises its power to strike out or enter judgm ent or make an order against him, (b) has a good reason fo r not attending the trial; and (c) has a reasonable prospect o f success at the trial It should be clear from the wording of Rule 7(5), aforesaid, that if the applicant cannot show, first, that he acted promptly in making the application, secondly that he has a good reason for not attending the trial and lastly, that his action has a reasonable prospect of success at the trial, then his application ought not to be allowed. It is now the intention of this Court to consider if the Claimant has satisfied the said conditions. (a)Did the Claimant act promptly in making the within application? It is erroneous, in this Court’s considered view, for the Defendant to contend that the Claimant did not act promptly in making the application for the restoration of the action to the cause list. The record o f the proceedings will show that the action was dismissed by this Court on the 23rd day o f October, 2017 and that the Claimant made an ex parte application to have the action restored on the 26th day of October, 2017, that is to say, just 3 days after the striking out of the same. Did the Claimant thus not act promptly? It is the view of this Court that he did. The Defendant might wish to note that what was filed by the Claimant on the 8th day of January, 2018 is an inter-parties application made by Claimant pursuant to the order o f this Court made on the 1st day of November, 2017 that the application to restore the action to the cause list be brought inter-parties and not ex parte. The Claimant having satisfied the first condition for the restoration of the action, this Court would thus not sustain the Defendant’s third ground of objection. It is, consequently, dismissed. (b)Did the Claimant have any good reason for not attending a trial? It is evident from the sworn statement in support of the application that Counsel for the Claimant was engaged with some other matters before the High Court, Principal Registry, Revenue Division at the same time as he was supposed to attend to trial before this Court, a fact which has not, in any way, been controverted by Counsel for the Defendant. This Court is of the view that this suffices as a good reason for not attending to the trial because Counsel could not have been in two different courts at the same time. Counsel for the Claimant can, however, be faulted for failing to give prior notice to this Court o f his other engagements. Such a failure, in this Court’s view, cannot be a just cause for denying the Claimant a right to be heard on his action. The Claimant having satisfied the second condition for the restoration of the action, this Court would thus not sustain the Defendant’s second ground of objection. It is, consequently, dismissed. In passing, this Court is rather perturbed with the conduct of Counsel for the Defendant in proceeding to apply for an order to have the action struck out when he had agreed with Counsel for the Claimant to have the hearing o f the action adjourned due to the fact that he (Counsel for the Defendant) had not been given adequate notice of the intended hearing. Good practice, in this Court’s considered view, required Counsel for the Defendant to communicate to this Court the fact that he had agreed with his learned friend to have the matter adjourned, rather than for him to apply to have the action struck out as if there was no agreement between them. (c) Does the Claimant have a reasonable prospect of success at the trial? Upon a careful perusal of the pleadings and the witnesses’ statements in the trial bundles o f both the parties to the action and the applicable law, it is the considered view of this Court, that the Claimant’s action does not have any reasonable prospects of success. The Claimant has thus failed to satisfy the third condition for the restoration of an action. The Claimant having failed to satisfy all the conditions for the restoration of an action, this Court would thus decline to grant the order sought by this application. The same is, consequently, dismissed, albeit not on the ground which has been sustained by this Court. The Costs: The costs of an action are in the discretion of the Court and normally follow the event. The event in this application being that the Defendant has successfully opposed the application, albeit not on the grounds advanced, it thus ought to have the costs of this application. It is so ordered. 6