Juma & Anor. v NBS Bank Limited (Civil Cause 266 of 2015) [2018] MWHC 27 (21 May 2018)

I bs\ \ x < ^ R E PU B LIC OF M A L A W I IN T H E H IG H C O U R T O F M A L A W I P R IN C IP A L R E G IS T R Y C IV IL CAUSE NO. 266 OF 2015 B E T W E E N B E A TR IC E M K W A L U L A J U M A ............................................................................... 1st C L A IM A N T C H R ISTO PH E R M K W A L U L A ................................................................................... 2nd C L A IM A N T A N D NBS B A N K L IM IT E D ...................................................................................................... D E F E N D A N T Coram: W Y S O N C H A M D IM B A N K H A T A (A S S IS T A N T R E G IS T R A R ) Chidothe - o f Counsel for the claimant Kumwenda- o f Counsel for the defendants Mkandawire- Court Clerk and Official Interpreter R U L IN G This is the court’ s ruling on an application by the defendant that this matter be dismissed for want o f prosecution. The summons is supported by a sworn statement by Susan Pendame, o f counsel, and the substantive part thereof reads as follows: 3. That the plaintiff instituted the present proceedings by way of writ o f summons issued by the court on the 10th of July 2015 filed in this court as originating summons seeking several declarations and orders against the defendant inter alia restraining the Beatrice Mkwalula & Christopher Mkwalula v NBS Bank Civil Cause No. 266 of 2015 Page 1 defendant and/or its agents, servants from exercising the power of appointment of a receiver and/or manager of the plaintiff’s assets pursuant to a debenture executed between the plaintiff and the defendant on the 18th of June 2011 at the plaintiff’s own request. 4. That on the 6th of April 2017 the plaintiff obtained an ex parte interlocutory order of an injunction against the defendant, its agents and/or servants from exercising the power of appointment of a receiver and/or manager of the plaintiff’s assets. 5. That the injunction was valid 14 days and the order provided that the injunction may be continued at the hearing ofan inter parte summons to be filed within 14 days thereof. 6. That on the 23rd o f May and 25th of May 2017, the matter was scheduled for an inter partes hearing and the same did not take place. 7. That given that it is the plaintiff who seeks continuation of the order the onus was on the plaintiff to file a notice of adjournment in order to procure a new date. 8. That the plaintiff has failed to file notice of Adjournment and thus failed to prosecute the matter further. 9. That on the 15th of July 2017 the plaintiff applied for and the court granted an order for leave to amend the originating summons. The defendant is o f the v iew that the plaintiff has to date failed and/or neglected to file and serve the amended originating summons. She contends that the delay in prosecuting the matter by the plaintiff is inordinately long and intends to abuse court process. Counsel therefore prays that the matter herein be dismissed for want o f prosecution and further for an order vacating the ex parte injunction and the defendant be at liberty to appoint the receiver and/or manager. The plaintiff opposes the application and it accordingly filed a sworn statement in opposition, sworn by Cassius Chidothe, o f counsel. The relevant part thereof is in the follow ing terms: That by a specially endorsed writ o f summons issued on the 10th o f July 2015 the claimants brought the action herein an order setting aside the Surety Charge herein, an order o f permanent injunction restraining the defendant either by itself, its servants, agents or whosoever from selling the property herein or enforcing the terms Beatrice Mkwalula & Christopher Mkwalula v NBS Bank Civil Cause No. 266 of 2015 Page 2 o f the Surety Charge herein and Costs o f this action. He states that after the termination o f the mediation they filed summons for directions. The hearing for the summons for directions failed to take place on the 25th o f April 2017. He exhibits a copy o f the summons for direction marked “ COC1” . He avers that the summons got them on the same date o f hearing with the result that they were unable to serve the same on the defendants. They subsequently filed a notice o f adjournment o f the summons for directions. They kept waiting for the issuance o f the notice o f adjournment until when they got served with the summons to dismiss action herein. Upon being served with the summons to dismiss the action herein they found that the court had issued the notice o f adjournment for hearing o f summons for directions on the 11th o f July 2017 and they were returnable on the 18th o f July 2017. He exhibits a copy o f adjournment marked “ COC2” . He further avers that the notice o f adjournment was never given to them by the court despite their numerous follow-ups at the court. He went on to state that the record shows that on the return date the summons for directions were dismissed for non-attendance as no party attended the hearing for the same. Upon discovery o f the matters respecting the notice o f adjournment herein in line with the Courts (High Court) (C ivil Procedure) Rules 2017, they filed a notice o f scheduling conference. He exhibits a copy o f the notice marked “ COC3” . He therefore avers that he verily believes that since termination o f mediation a step has not been taken by the claimants to prosecute the matter. He believes that there is no legal basis to dismiss the action herein and looking at the nature o f the action herein it would be just and equitable that it be determined on its merits. He therefore prays that the application be dismissed with costs. In a sworn statement in reply, it is averred the plaintiffs appear to have the summons for directions on their file with a date regardless o f when the date was communicated to them they did not however communicate anything to the defendant. She further avers that the claimant claims that court issued a notice o f adjournment on them and yet they appear to have the notice on their file and did not serve the same on the defendant. She avers that that the fact that they were not aware o f the date is a clear indication that they made no efforts to follow up on the dates. On the issue o f the notice for scheduling conference, Counsel states that the claimant file the same four days after their application to have the matter dismissed. She contends that the step has been taken in reaction to their application and could have been taken anytime last year. She therefore maintains her prayer that the matter be dismissed for want o f prosecution. The application is premised on 0.12 r.54 o f the C PR which provides as follows: (1) A defendant in a proceeding may apply to the Court for an order dismissing the proceeding for want o f prosecution where the claimant is required to take a step Beatrice Mkwalula & Christopher Mkwalula v NBS Bank Civil Cause No. 266 of 2015 Page 3 in the proceeding under these Rules or to comply with an order o f the Court, not later than the end o f the period specified under these Rules or the order and he does not do what is required before the end o f the period. (2 ) The court may dismiss the proceeding or make any other order it considers appropriate. From the reading o f the said order, it is clear that this court has discretion to dismiss an action i f the claimant fails to take a step in the proceedings. It would appear however that there are guidelines that this court ought to follow in the exercise o f this discretion. In Allen v. Sir Alfred McAlpine & Sons [1968] 1 A ll ER 543, p 547, Lord Denning M . R. said: The principle on which we go is clear: when the delay is prolonged and inexcusable, and is such as to do grave injustice to one side or the other, or to both, the court may in its discretion dismiss the action straight away, leaving the plaintiff to his remedy to his own solicitor who has brought him to this plight. Whenever a solicitor, by his inexcusable delay, deprives a client o f his cause o f action, the client can claim damages against him.” The same principles were elucidated by Unyolo J. as he then was in Sabadia v. Dowset Engineering Ltd. 11 M L R 417 at page 420 when he said: In deciding whether or not it is proper to dismiss an action for want o f prosecution, the court asks itself a number o f questions. First, has there been inordinate delay? Secondly, is the delay nevertheless excusable? And thirdly, has the inordinate delay in consequence been prejudicial to the other party? In the present case, the plaintiff obtained an order o f interlocutory injunction restraining the defendants from enforcing a Surety Charge over the plaintiffs’ property on the 10th o f July 2015. The order o f injunction was granted subject to an in te r p a rte s hearing within 14 days. The matter was set for the hearing o f the in te r p a rte s hearing on the 25th o f M ay 2017 and the same did not take place. The defendant is o f the view that the plaintiff has taken long without prosecuting the in te r p a rte s hearing since they are the ones seeking continuation o f the order. On the other hand, Counsel for the plaintiff is challenging this position. He is o f the view that the sworn statement in support o f this application does not state what actually happened in this matter. It would Beatrice Mkwalula & Christopher Mkwalula v NBS Bank Civil Cause No. 266 of 2015 Page 4 appear that the defendants first filed with the court a summons to dismiss the action for want of prosecution which was issued by the court on the 12th of March 2018. The same was supported by a sworn statement sworn by Susan Pendame. The sworn statement indicates on paragraph 5 that on the 23rd o f August 2016 the matter came up for mediation which was terminated by the mediator on the 10th o f March 2017 the parties having failed to reach an agreement. Observably, this part was omitted on the summons for want o f prosecution which the defendants filed with the court on the 21st o f March 2018.1 noticed that when the parties came before this court on the 25th o f April 2018, the defendants did not even give an explanation as to why this part had now come to be omitted. I must state here that this did leave this court a bit puzzled. One would think that this was tactfully done to conceal the fact that the matter was not totally dormant. It truly begins to cast doubt on whether the application has a factual basis. I take note that the record indicates that the plaintiff further filed summons for directions which was set to take place on the 25th o f April 2017. The same did not take place. Subsequently, a notice o f adjournment was taken out which was issued on the 18th o f July 2017. In my opinion, this matter was not been entirely abandoned by the claimant. Possibly, it is the period o f inaction from that point that has irked the defendant. However, going by the sworn statement by Susan Pendame on paragraph 7 and 10, I believe the defendant is aggrieved with the fact that the plaintiff has not prosecuted the inter partes summons for the order o f injunction that was granted to them ex parte and that the plaintiffs have not served them with an amended originating summons. Indeed, the injunction was granted subject to an inter partes hearing within 14 days as aforementioned. The same has not yet taken place and the order obtained by the plaintiff subsists. Counsel for the plaintiff argues that they are under no obligation by law or court order to prosecute the inter partes summons for this to form basis for the dismissal o f the matter. It would appear the plaintiffs are taking advantage o f the fact that the order by the Judge did not explicitly state that it is the plaintiff who ought to file for an inter partes hearing within 14 days. I find that inequitable. The plaintiff is currently enjoying the relief that was granted and would presumably wish the same to continue by being passive regardless o f its effect on the defendant. It goes without saying that the Judge had called for an inter partes hearing to ensure that the continuation or discontinuation o f the said order o f injunction was grounded on merits o f the case obtained from both parties. Be that as it may, the record shows that on the 25th o f April 2016 Counsel Chidothe for the plaintiffs and Counsel Nyanda for the defendant appeared before the Judge on an application by the defendant to discharge the order o f injunction. The application was adjourned for ruling. The record is not clear as to what the outcome o f the application was. Suffice to say, insisting on the inter partes application means B eatrice M kwalula & C h ristoph er M kwalula v NBS Bank Civil Cause No. 266 o f 2015 Page 5 bringing the same issues before the court twice. Possibly, the defendant should cry foul that the plaintiff has been pussyfooting on making an application for scheduling conference and serving an amended originating summons. It is not surprising that four days after the defendants’ application to have the matter dismissed for want o f prosecution the plaintiff was spurred to file for scheduling conference. The question would be where were they for the past months. Going by the authorities cited by Counsel for the defendant Allen v. Sir Alfred McAlpine & Sons [1968] 1 ALL ER 543; Flywell Banda v Council for the University of Malawi and Attorney General v Msalika MSCA 38 of 2016, the duration with which the plaintiff failed to take the next step is sufficient for this court to make a finding that the delay has been inordinate. Nevertheless, looking at what has so far transpired, I believe this is not a case the court should exercise its discretion under 0.12 r.54 o f the CPR. Considerable steps were taken albeit the procrastination. In the case o f Reserve Bank of Malawi v. Attorney General, Constitutional Cause Number 5 of 2010 (unreported) Sikwese J. stated that the power to dismiss an action should be exercised only where the Court is satisfied that the default has been intentional and contumelious. In this case, this court is o f the view that the best way to proceed is by compelling compliance. In view o f the foregoing, I dismiss the application and allow the matter to proceed to scheduling conference. The plaintiff must serve the defendant with the amended originating summons with the next 7 days if this has not yet been done. As for the prayer to vacate the injunction herein, it is very obvious that this court does not have jurisdiction to do so. I need not belabour this point. The plaintiff is condemned in costs for this application. Beatrice M kwalula & C hristopher M kw alula v NBS Bank Civil Cause No. 266 o f 2015 Page 6