Kanjere v Patel & Chizizi (37 of 2023) [2024] MWHCCiv 15 (11 October 2024)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY CIVIL DIVISION CIVIL CAUSE NO. 37 OF 2023 BETWEEN MADALITSO KANJERE............cccccececcecceccesceccesccessecenscess CLAIMANT -AND- BLEIN PAT ElicwcccsmnancrcnmnoenEKesR 1°’ DEFENDANT -AND- FWASANT CHIZI ZA cswsssesnscasevossanasscosnvcanncntnissessanenece 2? DEFENDANT CORAM: Hon. Justice William Yakuwawa Msiska : Mr. R. Phombeya, of Counsel, for the Claimant : Mr. M. Chilenga, of Counsel, for the Defendants : Mrs. G. Chirwa, Court Clerk RULING Introduction [1] This is an Order of the Court following the hearing of an application within a proceeding in which the defendants asked this Court to strike out the Summons and the application for an interlocutory order of injunction for being irregular under 1|Page Order 7, rule 1(h) of the Courts (High Court) (Civil Procedure) Rules (hereinafter referred to as CPR). Background [2] The claimant commenced this proceeding against the defendants seeking— (a) declarations that the— (i) customary land comprising 0.334 of a hectare currently occupied by the claimant that was fraudulently registered as part of a lease in favour of the 2"! defendant comprising 0.5595 hectares currently known as Deed No. 82930 situate at Chilokoto Village, T/A Maganga at Kambiri Point in Salima district belongs to the claimant; (ii) lease known as Deed No. 82930 that covers the 0.334 hectares of land situate at Chilokoto Village, T/A Maganga at Kambiri Point in Salima district currently occupied by the claimant was fraudulently issued to the 2™ defendant by Mr. Derrick Kamwambi in abuse of his office as Assistant Lands Officer at Salima after the claimant had already purchased that land and occupied it; (iii) 1* defendant does not own any proprietary or other interest in the 0.334 hectares of land currently occupied by the claimant; (b) an order restraining the 1 and 2"* defendants from trespassing the customary land comprising 0.334 of a hectare of land being part of 0.5595 hectares fraudulently registered as a lease in favour of the = defendant currently known as Deed No. 82930 situate at Chilokoto Village, T/A Maganga at Kambiri Point in Salima district currently occupied by the claimant; and (c) costs of the action. [3] Simultaneously, the claimant applied, on a without notice, for an order of interlocutory injunction. The Court granted the application for injunction to be in force for 21 days pending the hearing of an inter- partes application for injunction. 2|Page [4] The claimant, then filed an infer partes application for an order of injunction which was set down for hearing on 3 May, 2023. Being afraid that the interim order of injunction was about to expire due to effluxion of time, the claimant applied to this Court for extension of time for the validity of the interim order of injunction. [5] In the meantime, the defendants filed a sworn statement in opposition to the application for injunction which was made by the 1° defendant. As required by Order 20, CPR, the defendants also filed skeleton arguments. [6] The defendants also took out a notice requesting the Court that at the hearing of the application for injunction, the Court should first determine the preliminary issue of whether or not the Summons and the application for injunction be struck out for irregularity on the ground that it was not signed by a legal practitioner contrary to Order 7, rule 1(h) CPR. The defendants also filed skeleton arguments for that purpose. [7] On the date of hearing, the Court directed that the notice to strike out the Summons should be heard first noting that the outcome whichever way it goes will determine the future of the proceeding. Submissions by the Defendants [8] In his submission, counsel for the defendants emphasized that the Summons was signed by a “Churchill & Norris” which is not a legal practitioner. According to counsel Order 7, rule 1 (h), CPR, a statement of case must be signed by a legal practitioner or claimant himself or herself. It was submitted that the Summons and the statement of case (claim) are irregular as they were not signed by a legal practitioner as required by law. There is no legal practitioner in Malawi answering to the name “Churchill & Norris”. Both in the oral submission and in the skeleton arguments filed in support, the defendant cited the case of Misozi Chanthunya v Republic MSCA No. 2 of 2019 on the understanding that the Supreme Court of Appeal ruled that all Summons or documents must be signed by a legal practitioner. [9] Pausing here, this Court wishes to quickly deal with the reference to the Misozi Chanthunya Case. The Court has gone through the decision in that case and it is satisfied that the citation in support of the submission by counsel is misconceived. The eminent Justice of Appeal in that case did not at any point expressly, impliedly or at all state that Summons or other documents filed in court should be signed by a 3|Page legal practitioner. It was not even stated by way of obiter. In any event, that was not the question before the court. Rather counsel Maele applied to court requesting that the Justice of Appeal should be recused from hearing the application to dismiss the appeal for want of prosecution on account of being conflicted as he hitherto dealt with the matter on behalf of the State when he was Attorney General. [10] Coming back to the submission by the defendants, it was further submitted that a legal firm signing court documents on behalf of the legal practitioner is deemed that the signature by the legal firm is ineffective. In support of the submission, the defendants cited the Nigerian case of Guaranty Trust Bank PLC v Innoson Nigeria Ltd [2017] 48 W. R. N 1. [11] The defendants argued and submitted that proceedings based on an irregularity cannot be cured and cannot stand. The defendant cited the case of George Kainja v Director of Anti-Corruption Bureau and Others Judicial Review Cause No. 48 of 2022 (unreported) in which Nyirenda, J stated that— “On the issue of irregularity I have said sufficient, I think, to make it clear that the application for recusal is seriously flawed- it has not been competently brought in so far as the procedure is concerned. Looking at the serious nature and the many and varied irregularities at play in relation to the application for recusal, I am not persuaded by the oral submissions made by Counsel for the 1 * Defendant that the irregularities are curable under Order 2 as read with Order I rule 5 of the CPR.” [12] The defendants contended that since the Summons is defective and cannot be cured it means the injunction obtained pending the hearing of an inter- partes application cannot stand. Again, since no further step has been taken by the defendants, it would not be appropriate to argue that the defendants have waived their right to question or challenge an irregularity. [13] Of course, the defendants through their submission acknowledged that under Order 2, rule 3, the Court has broad discretionary powers on how to deal with non- compliance with CPR which include setting aside all or part of the proceeding; setting aside a step taken in the proceeding; declaring a document or a step taken to be ineffectual; or making an order that the Court may deem fit. According to the 4|Page defendants, and relying on the authority of Triza Lunduka v Fletcher Zenengeya and United General Insurance Company Civil Cause No. 1144 of 2016 they submitted that this was a proper case where the Court should exercise its discretion to strike out the proceeding based on an irregular Summons. Submissions by the Claimant [14] The claimant in his oral submission started by contending and submitting that there is no formal application before Court inviting it to strike out the Summons for being irregular. The application being one questioning the procedure, the defendant ought to have brought it following the correct procedure. It was submitted that an application of this nature should have been lodged under Order 2, rule 4 as read with Order 10, rule 2, CPR. Failure to do so is fatal. The case of Impala Farming Limited y T/A Chizuma and Others Civil Cause No. 681 of 2013 was cited in support of the position. [15] Secondly, the claimant submitted that Order 7, rule 1 (h) does not provide for procedure. It is a mere written rule of law which could not form a basis for making an application. The claimant maintained that the defendants have failed to make an application that there is an irregularity. However, if the Court finds that there is an irregularity, such a defect is curable under Order 2, rule 2 of CPR. For that reason, the claimant implored the Court not to render the Summons a nullity. In the least of the circumstances, the Court may just order that the irregularity be made good. The order striking out the Summons may not be in the best interest of justice as there will be no basis for the injunction. According to the claimant such a step would be contrary to the overriding objective under Order 1, rule 5, CPR more particularly because there is no application before the Court challenging the irregularity. Submissions in Reply [16] The defendants maintained that there is a formal application to strike out the Summons and therefore the case of Impala Farming Limited vy T/A Chizuma and Others Civil Cause No. 681 of 2013 may not be correct in the circumstances of the present case. Secondly, the injustice arising from an irregular proceeding is immense, It should be acknowledged that legal practitioners are privileged and it is the preserve of legal practitioners to prepare Summons and other court documents. Besides, the defendants submitted that it is an offence both under the Courts Act and 5|Page the Legal Education and Legal Practitioners Act for a person who is not a legal practitioner to undertake work which is the preserve of a legal practitioner. On that basis, it was submitted that the irregularity is a serious one which cannot be cured as suggested by the claimant. So far, no any suggestion has been made on how the irregularity can be cured. [17] It was also submitted that reliance by the claimant on Order 1, rule 5 dealing with overriding objective of the CPR does not in any way aid their cause observing that the Court is required to deal with properly issued documents that have been signed by a legal practitioner. The defendants reiterated the position that the Summons should be struck out. Submissions by the Parties on the import of the definition of Legal Practitioner under Legal Education and Legal Practitioners Act and the Legal Practice Rules [18] Before considering matters of law covering the issue at hand, the Court asked both parties to address it on the import of the definition of legal practitioner under the principal legislation (Legal Education and Legal Practitioners Act) and its subsidiary legislation the Legal Practice Rules. [19] The defendants argued and submitted that section 4 of the Courts Act prohibits a person to practise law who is not a legal practitioner. According to the defendants, it is only the legal practitioner who is entitled to sign the documents and must be a person who is licensed to practise law. It is only the members of a legal firm who are licensed legal practitioners who should sign court documents. It is not every employee of the legal firm who can sign courts documents. The defendants went ahead to allege that it was in fact Mr. Mwape an employee of the firm of legal practitioners styled as Churchill & Norris who is not a legal practitioner is the one who signed both the Summons and the statement of case (claim). [20] On the part of the claimant, it was contended that the definition of legal practitioner under the Legal Practice Rules applies to the present matter. Firstly, it is wrong for the defendants to speculate that the signature on the Summons and statement of claim belongs to a Mr. Mwape as there is no evidence to support that allegation. Lastly, there is no specific legal requirement that a legal practitioner has to write his full name and then append his signature. The signature only without the 6|Page full names of the legal practitioner suffices and that the Court should, on the face of it, take it as a signature of a legal practitioner in a particular legal firm. Issues for determination There are two issues for determination which are— (a) whether or not the notice lodged by the defendants challenging the validity of the “Summons” or “statement of case (Claim)” is properly and procedurally before this Court; and (b) whether or not Summons/ statement of case (claim) be struck out having been signed by a person who is not a legal practitioner. Law and Analysis Challenging an Irregularity under Civil Procedure Rules [21] Order, 2 CPR, deals with the effect of non-compliance with the Rules. Order 2, rule 1 is to the effect that failure to comply with the Rules or a direction of the Court is an irregularity. However, rule 2 states that an irregularity in a proceeding, or a document, or a step taken or made in a proceeding does not render a proceeding, document, step or order a nullity or invalid. [22] In circumstances where an irregularity or non-compliance with the Rules or direction of the Court has occurred, the Court may exercise its power pursuant to Order 2, rule 3 to: (a) set aside all or part of a proceeding; (b) set aside a step taken in the proceeding; (c) declare a document or step taken to be ineffectual; (d) declare a document or step taken to be effectual; (e) make an order as to costs; or (f) make any order that the Court may deem fit. In short, the Court has power to cure an irregularity. [23] For the Court to exercise its power under Order 2, rule 3, a party to a proceeding who has noted the irregularity is required to move the Court by making an application for that purpose. The application is required to be made within a reasonable time and before the party making the application takes a fresh step in the proceeding after becoming aware of the irregularity. The application should also set out the details of the failure to comply with the Rules or a direction of the Court. 7|Page [24] Under rule 4, the Court can only be moved by an application. The application envisaged under this Rule can only be made in accordance with the provisions of Order 10 in particular the part titled “APPLICATIONS IN PROCEEDING AND INTERLOCUTORY ORDERS”. The application can also only be heard in the presence of the other party. According to Order 10, rule 1, a party may apply during a proceeding for an interlocutory order or direction of the Court by filing an application in Form 4. See Impala Farming Limited v T/A Chizuma and Others Civil Cause No. 681 of 2013. The Civil Procedure Rules require that a formal application compliant with Order 10, rule 1 should initiate the process of challenging an irregularity. The insistence on using Order 10, rule | is to enable the other party to understand the basis of the challenge and be able to respond if need arises. This issue was also well addressed and settled in the case of Saulosi Chilima & Another v Mutharika & Another Constitutional Reference No. 1 of 2019 (being a Ruling delivered on 21*' June, 2019). [25] With regard to who can sign court documents, there are provisions in the CPR that state that certain court documents must be signed by a legal practitioner. Order 5, rule 3 provides as follows— “4 summons shall— (a) be signed by the claimant or the claimant's legal practitioner; (b) name as defendant anyone whose interest shall be affected by the order sought; and (c) be signed and sealed by the Registrar.” Order 7, rule 1(h) on which the present issue the subject of this judgment is premised, provides that a statement of case shall, where it is prepared by a legal practitioner, state the name and address of the legal practitioner. Who is a Legal Practitioner? [26] The law requires of a legal practitioner or the claimant acting in person to sign the Summons or a statement of case. The question therefore is who then is a legal practitioner? According to section 2 of the Legal Education and Legal Practitioners Act, Act No. 31 of 2018, the term legal practitioner is defined as follows— “legal practitioner means a person— (a) who has been admitted to practice the profession of the law before a court; and 8|Page (b) whose name has been inscribed on the Roll.” [27] Under section 22, for a person to practise as a legal practitioner in Malawi, it is a requirement that the person should first be admitted to practise the profession of the law. Upon being admitted to practise as a legal practitioner, the Chief Justice is mandated or required to issue to the person so admitted a certificate to practise the profession of the law. It is this certificate that entitles the person named on it to practise as a legal practitioner. The certificate to practise is evidence of compliance with the Legal Education and Legal Practitioners Act with respect to the requirements for admission. [28] Reading together the definition of the words or expression “legal practitioner” and the provisions of section 22, leaves no doubt in the mind of this Court that a legal practitioner is a natural person or human being who has not only complied with the requirements for admission to practise the profession of the law but that the person should also have been admitted to practice the profession of the law before a court and the name of that person who has been so admitted to practise the profession of the law should be inscribed on the Roll. [29] It is undeniable that the practice of the law is a privilege for those individuals who have been admitted to practise the profession of the law before a court and whose names have been inscribed on the Roll. It is not surprising that in order to protect the public from unscrupulous individuals, both the Courts Act under section 4, and the Legal Education and Legal Practitioners Act, under section 31 have proscribed engaging in the practice of law by those who are not legal practitioners. The wording in the two sections or provisions are to a greater extent similar. [30] Section 31 of the Legal Education and Legal Practitioners Act states as follows— “(1) A person who is not, or who has ceased to be, entitled to practice as a legal practitioner by virtue of this Act or any other written law, and who, does any of the following acts— (a) commences, carries on or defends any action, suit or other proceedings in the name of any other person or in his own name, or does any act required by law to be done by a legal practitioner in a court; 9|Page (b) draws or prepares any instrument relating to real or personal property or any proceeding in law or draws or prepares any document or caveat relating to land registration; or (c) does any other work in respect of which scale or minimum charges are laid down by the Legal Practitioners (Scale and Minimum Charge) rules, or by any other rules for the time being in force prescribing or relating to charges for any services to be performed by a legal practitioner, commits an offence and shall, upon conviction, be liable to a fine of five million Kwacha (K5,000,000) and imprisonment for ten (10) years. (2) The Society may prosecute a person who contravenes this section but shall not prosecute a person for an offence under this section— (a) without the written consent of the Director of Public Prosecutions, and (b) for any work restricted by this section which is regulated by an Act of Parliament. (3) This section shall not extend to— (a) any public officer drawing or preparing instruments in the course of his duty; or (b) any person who is employed merely to engross any instrument or proceeding. (4) For the purposes of this section, the expression “instrument” does not include— (a) a letter or power of attorney under seal; (b) a transfer of stock containing no trust or limitation thereof; (c) a letter written for the purposes of collection of monies; (d) an undefended trademark or patent application; or (e) a passport application. (5) Nothing in this section shall be deemed to limit the right of any person to appear on his own behalf before any court in proceedings to which he is a party. (6) A legal practitioner admitted to practice in accordance with section 24 and serving in the public service or for a public body shall not be entitled to practise the profession of the law other than in his official capacity.” [31] However, under rule 2 of the Legal Practitioners Practice Rules which have been saved under section 122(5) of the Act, and deemed to be made under the Act, 10|Page ‘legal practitioner’ means a person who has been admitted to practice the profession of the law before the High Court, or before any court subordinate thereto, and whose name has been inscribed upon the Roll; the expression ‘egal practitioner’ shall include a firm of legal practitioners. Clearly, by the use of the word “include” the definition has been extended to apply to a firm of legal practitioners. [32] The question worth considering is whether or not this is a correct position at law? The first port of call is the General Interpretation Act, Cap. 1:01. Section 19 (a) states as follows— “In all subsidiary legislation, except where a contrary intention appears— (a) expressions used shall have the same respective meanings as in the written law under the authority of which the subsidiary legislation was made,” Further, section 21(b) states as follows— “Where any written law confers power on any person lo make subsidiary legislation, the following provisions shall, unless a contrary intention appears, have effect with reference to the making of subsidiary legislation (b) no subsidiary legislation shall be inconsistent with provisions of any Act and any such legislation shall be of no effect to the extent of such inconsistency, ” [33] From the two provisions, it is clear that the meaning of an expression used in subsidiary legislation shall be different from that used under the principal legislation depending on what is intended to be achieved by the subsidiary legislation. That therefore calls for this Court to consider the subsidiary legislation as a whole to ascertain whether the departure from the meaning of the expression in the principal legislation can be justified. If the Court concludes that the departure from the meaning of the expression in the principal legislation cannot be justified, then that part of the subsidiary legislation falls foul of the principal legislation and therefore of no effect to the extent of such inconsistency. Similarly, where departure in the meaning of an expression in the principal legislation cannot be justified, it is tantamount to amending the principal legislation through subsidiary legislation which is prohibited at law. See Prof. Arthur Peter Mutharika and Another v Dr. Saulosi Klaus Chilima and Another MSCA Constitutional Appeal No. 1 of 2020. [34] Before proceeding to consider whether the departure from the meaning of the expression in the principal legislation can be justified, it should be acknowledged 11|Page that the practice of the profession of law as a business can either be through sole proprietor or a firm of legal practitioners. These are the two known business vehicles for the practice of law in Malawi. For the legal definition of the word “firm”, it would not be wrong to have recourse to the Partnership Act, Cap. 46:04 of the Laws of Malawi. The Partnership Act provides for the meaning of the expression “firm” in section 6 as follows— “Persons who have entered into partnership with one another are for the purposes of this Act called collectively a firm and the name under which their business is carried on is called the firm-name.” The word “business” is defined under section 2 of the Partnership Act. It reads as follows— “ “business” includes every trade, occupation or profession” [35] The practice of the law is a profession. Section 2 of the Legal Education and Legal Practitioners Act is to that effect. It follows, therefore, that the practice of law fits into the definition of the word “business”. The name of the partnership under which the practice of the profession of the law as a business is carried on is the firm name. Churchill & Norris is such a firm name. The Court wishes to add that a firm of legal practitioners is a unique type of partnership in the sense that the partners are only those individuals who under the law are entitled to practise the profession of the law and the names of those individuals are inscribed on the Roll. In other words, it is a partnership made up of persons who have been admitted to practise the profession of the law before a court and whose names have been inscribed on the Roll. [36] As a business entity, a firm of legal practitioners can, besides the partners who are legal practitioners themselves, also employ other legal practitioners. A firm of legal practitioners can also employ other individuals not being legal practitioners to perform and execute several tasks and duties in the furtherance of the business. The tasks performed or executed by these other employees of the firm of legal practitioners are those which are not strictly the preserve of legal practitioners. In other words, these other employees offer support services to the core business of a firm of legal practitioners. 12|Page Meaning of “the practice of law” [37] Besides proscribing the practice of law by a person who is not a legal practitioner, it is the view of this Court that section 31 somewhat and indirectly addresses what would be meant by the phrase “the practice of law”. From section 31(1), some aspects of the practice of law include: (a) commencing, carrying on or defending or in his own name any suit or other proceedings in the name of any other person or doing any act required by law to be done by a legal practitioner; (b) drawing or preparing any instrument relating to real or personal property or any proceeding in law or drawing or preparing any document or caveat relating to land registration; or (c) doing any other work in respect of which scale or minimum charges are laid down by the Legal Practitioners (Scale and Minimum Charges) Rules. [38] Black’s Law Dictionary, 9 Edition, defines “practice of law” as follows— “The professional work of a duly licensed lawyer encompassing a broad range of services such as conducting cases in court, preparing papers necessary to bring about various transactions from conveying land to effecting corporate mergers, preparing legal opinions on various points of law, drafting wills and other estate planning documents, and advising clients on legal questions. The term also includes activities that comparatively few lawyers engage in but that require legal expertise such as drafting legislation and court rules.” [39] The expression “practice of law” means any activity, in or out of court, which requires the application of law, legal procedures, knowledge, training and experience. To engage in the practice of law is to perform those acts which are characteristic of the profession. [40] The “practice of law” is therefore not limited to conduct of cases in court. It includes legal advice and counsel, and the preparation of legal instruments and contracts by which legal rights are secured, although such matter may or may not be pending in any court. See Howton v Morrow 269 Ky 1 (a decision of Kentucky Court of Appeals), Land Title Abstract and Trust Co v Dworken 129 Ohio St. 23, 193 N. E.650 and State ex. rel. Mckittrick vy CS. Dudley and Co., 102 S. W.2d 895. [41] According to the case of West Virginia State Bar v Earley 109 S. E.2d 420, the court said- 13 |Page “In the practice of his profession, a licensed attorney at law generally engages in three principal types of professional activity. These are: (a) legal advice and legal instructions to clients to inform them of their rights and obligations; ( b) preparation for clients of documents requiring knowledge of legal principles not possessed by ordinary lay men; and (c) appearance for clients before public tribunals which possess power and authority to determine rights of life, liberty, and property according to law, in order to assist in proper interpretation and enforcement of law.” In the case of Philippines Lawyers Association _v_Agrava (105 Phil. 173), the Supreme Court of Philippines held that— “The “practice of law” is not limited to the conduct of cases in court; it embraces the preparation of pleadings. and other papers incident to actions and special proceedings, the management of such actions and proceedings on behalf of clients before judges and courts, and in addition, conveying. In general, all advice to ’ clients, and all action taken for them....’ [42] Clearly, the practice of law, therefore, covers a wide range of activities in and out of court. Both section 31 of the Legal Education and Legal Practitioners Act and section 4 of the Courts Act point to that inescapable conclusion. That is the firm view of this Court. [43] With regard to court work or litigation, the practice of law goes beyond commencing, carrying on or defending an action, suit or other proceedings. It includes doing any act required by law to be done by a legal practitioner (see section 31(1) and section 4 (1) of the Legal Education and Legal Practitioners Act and Courts Act, respectively). (emphasis provided). [44] The highlighted and underlined words in section 31(1) (a) defies limitation or qualification of the type of an act that is required by law to be done by a legal practitioner. It is by no any stretch of imagination confined to an act required by law. The word “any” is a word of wide, broad and unqualified generality. see Dictionary of Legal Words and Phrases, Vol. 1, 1975 ed. 97; Words and Phrases Legally Defined, Vol.1, 1988 ed. 92; Stroud’s Judicial Dictionary of Words and Phrases, 6" ed. 134. [45] In the case of Gondwe v David Whitehead &Sons Ltd [1987-89] 12 MLR 3358 citing the case of Clarke-Jervoise v Scutt [1920] 1 Ch. 382 at 388 it was held that 14|Page “‘any’ is a word of very wide meaning, and prima facie the use of it excludes limitation.” Admittedly, where a law (statute/Act of Parliament) requires a particular act to be done by a legal practitioner, it is only safe, in the view of this Court that a legal practitioner should do or perform that act and nobody else. [46] In the context of the instant case, one such act that is by law required to be done by a legal practitioner is the signing of the Summons and statement of case (supra Order 5, rule 3 and Order 7, rule 1(h), respectively). To ‘sign’ according to Black’s Law Dictionary, means to identify by means of a signature, mark, or other symbol with the intent to authenticate it as an act of the person identifying it. The importance of requiring a legal practitioner who commences an action or a proceeding on behalf ofa litigant to sign the Summons or statement of case, is to ensure responsibility and accountability on the part of the legal practitioner. Whether definition of legal practitioner can be extended to firm of legal practitioners [47] Reverting to the issue of whether or not the meaning of the expression “legal practitioner” can be extended to a firm of legal practitioners through subsidiary legislation, it is imperative, as stated under paragraph 31 herein for this Court to ascertain whether the departure from the principal legislation can be justified. Invariably this calls on the Court to consider the whole piece of subsidiary legislation. The pertinent provisions of Legal Practitioners Practice Rules for the purposes of this case are Rules 3 to 7 inclusive. Rule 3 deals with seeking business by improper means. It prohibits a legal practitioner from directly or indirectly applying for or seeking instructions for professional business or doing or permitting in the carrying on of his practice any act or thing which can reasonably be regarded as touting or advertising or as calculated to attract business unfairly. [48] Rule 4 addresses the issue of undercutting. It prohibits a legal practitioner from directly or indirectly indulging in the practice of offering legal services or professional business at less than the scale fixed by Rules of the Court in contentious matters or in non-contentious matters at less than the scale of charges fixed by the Legal Practitioners (Scale and Minimum Charges) Rules or prescribed by any other written law. Undercutting is prohibited as it devalues the otherwise noble profession of the law. 15|Page [49] Similarly, Rule 5 deals with the issue of sharing profits with a person not qualified as a legal practitioner. Under this Rule, legal practitioners are not allowed to enter into agreements to share profit costs with any person who is not a legal practitioner. Nevertheless, there are two scenarios in which the sharing of profit costs by a legal practitioner with a person not qualified as a legal practitioner is allowed. First, is where a legal practitioner who carries on practice on his own agrees to pay an annuity or other sum out of profits to a retired partner or predecessor or the dependants or legal personal representative of a deceased partner or predecessor. The other circumstance is where a legal practitioner is employed to do the legal work of an employer who is not a legal practitioner agrees with such employer to set off his profit costs received against the salary so paid or payable to him and the reasonable office expenses incurred by the employer in connexion with such legal practitioner. [50] Under Rule 6, a legal practitioner is not allowed to act in association with any organisation or person who is not a practising legal practitioner and whose business is to make, support or prosecute claims arising as a result of death or personal injury including claims under the Workmen’s Compensation Act or any statutory modification or re-enactment thereof in such circumstances that such person or organization solicits or receives any payment, gift or benefit in respect of such claims, nor shall a legal practitioner act in respect of any such claim for any client introduced to him by such person or organization. Broadly, this rule prohibits a legal practitioner to take on matters relating to personal injuries which are brought to him by individuals or organisation in return for any payment, gift or benefit. [51] With regard to supervision of the principal office and its branches, rule7 is in point. It is the duty of a legal practitioner who has established a firm as sole practitioner or in partnership with other legal practitioners to ensure that the principal office and its branches, if any, are properly supervised based on the minimum requirements. These minimum requirements include that: (a) every such office is managed by a legal practitioner; (b) 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) 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 materials for legal 16|Page research as will enable the legal practitioner readily to render appropriate professional service to his clients. [52] An examination and thoroughly circumspect consideration of the Legal Practitioners Practice Rules point to the conclusion that these are the standards of professional conduct with which every legal practitioner should comply. The Legal Practitioners Practice Rules stipulate professional conducts for the legal practitioner, and what amounts to professional misconduct by legal practitioners in Malawi. It is the understanding of this Court that standards of professional conduct may include practices, skills and ethics set forth by a professional body representing the profession or a discipline. The aim of the standards of professional conduct is to euide the behaviour of the individual members in a profession as well a collective within the profession. The setting forth of the standards of professional conduct by a professional regulatory body may be through legislation or otherwise. [53] In the profession of law, no doubt, an individual who is a legal practitioner is the one who is a member of the profession and therefore subject to the standards of professional conduct as set forth by the Malawi Law Society, a regulatory body. (see Part VIII of the Legal Education and Legal Practitioners Act). Clearly, a firm of legal practitioners which is just a business vehicle, cannot be subject to the Legal Practitioners Practice Rules. A firm of legal practitioners is not a member of the profession. This Court is unable to find in the Legal Practitioners Practice Rules where legal practitioners’ conduct, while carrying out the practice of law, is regulated collectively as a firm. What the Court has found is that each legal practitioner, even in a firm of legal practitioners, is still being regulated individually. Put differently, only the individual partners or any legal practitioner employed in the firm or the sole proprietor are members of the profession and therefore subject to the standards of professional conduct. This Court holds that although individual legal practitioners can aggregate as a firm of legal practitioners, yet they are imbued with individual responsibility under the Legal Practitioners Practice Rules, which is never collective within the legal regime of the practice of law. Moreover, the words employed in the drafting of section 2 of the Legal Education and Legal Practitioners Act with regard to the definition of the expression “legal practitioner” are simple and straight forward. The literal construction of the law is that legal practitioners are animate personalities and not a firm of legal practitioners which is inanimate and cannot be found on the Roll. It is only the animate personality whose name is 17 | Page inscribed on the Roll after being admitted to practice the profession of law who is a legal practitioner. [54] For that reason, the departure from the definition of the expression “legal practitioner” in the principal legislation cannot be justified. The extension of the definition of the term “legal practitioner” through subsidiary legislation to include a firm of legal practitioners is contrary to the provisions of both section 19(a) and section 21(b) of the General Interpretation Act. The legal expedition unveils that there is no any other contrary intention for departing from the definition of “legal practitioner” as provided for in the principal legislation. Where departure from the definition of an expression as used in the principal legislation is not justified, it is tantamount to amending principal legislation through subsidiary legislation which is untenable at law. see Prof. Arthur Peter Mutharika and Another vy Dr. Saulosi Klaus Chilima and Another MSCA Constitutional Appeal No. 1 of 2020 (supra). For all purposes and intents, the Court holds that the definition of the expression “legal practitioner” in the principal legislation should be the one to be used. The definition of the expression “legal practitioner” in the principal legislation can therefore not be extended through subsidiary legislation to include a firm of legal practitioners. The part the definition to wit “the expression legal practitioner shall include a firm of legal practitioners” is inconsistent with section 19 (a) and section 21 (b) of the General Interpretation Act and therefore invalid. Effect or Status of Summons Signed by Person Not a Legal Practitioner [55] In this jurisdiction, there is no jurisprudence that deals with or addresses the effect or status of Summons signed by a person who is not a legal practitioner. There is however jurisprudence covering the effect of practising law by a legal practitioner who does not have a valid licence to practise. This includes a legal practitioner who, for whatever reason, has not renewed the licence to practise in a particular year. In the case of Pastor Chilambe and Others vy Pastor Mfera and Others Civil Cause No.21 of 2022, Mambulasa J, correctly, in the view of this Court, and after clearly distinguishing the Supreme Court of Appeal for Malawi decision in Telekom Networks Malawi PLC -vs- Globe Teleservices PTE Limited MSCA Civil Appeal No.10 of 2021 declared as a nullity, all steps taken including documents filed by advocate Daud Mbwana for practising without a licence. See also the cases of Lackson Chimangeni_Khamalatha and 26 others -vs- Secretary General of the 18|Page Malawi Congress Party Civil Cause No. 1347 of 2015; Tarifa Suleman_-vs- Suleman Gaffar Suleman Civil Cause No. 290 of 2014; and Lucy Nkhoma -vs- Adam Mlumbe and Emmanuel Chimtengo Commercial Cause No. 43 of 2016. [56] As to the legal status of a Summons signed by a person who is not a legal practitioner, this Court had recourse to the jurisprudence from comparable common law jurisdictions, in particular, Nigeria where there is a plethora of authorities on the subject. In the case of Emmanuel Okafor v Augustine Nweke (2007) 19 WNR 1 the Supreme Court of Nigeria declared the motion on notice, the proposed notice of cross appeal and the applicant’s brief of argument in support of the motion on notice as incompetent and a nullity as they were not signed by a legal practitioner known to law. Consequently, the processes were struck out. The brief facts of the case were that the applicant filed three processes to wit: the notice of motion; the proposed notice of cross appeal; and the brief of argument. These processes were respectively signed by J. H. C. Okolo, SAN &Co, a firm of legal practitioners and not by a legal practitioner as contemplated in section 24 as read with section 2 of Legal Practitioners Act, 1990. Section 24 defines a legal practitioner as follows— “Legal practitioner means a person entitled in accordance with the provisions of this Act to practise as a barrister and solicitor either generally or for the purposes of any particular office or proceedings. ” Further, section 2 states as follows— “Subject to the provisions of this Act, a person shall be entitled to practise as a barrister and solicitor if, and only if his name is on the roll.” [57] Similarly, in the case of SLB Consortium Limited _v_ Nigerian National Petroleum Corporation (2011) 4 CLRN 1; (2016) 9 NWLR 317, the Supreme Court of Nigeria unanimously struck out the appeal for being incompetent and therefore a nullity on account that the originating summons in the trial court was not signed by a legal practitioner known to law. In his words, Fayibi, JSC, said- “There is no gain-saying the fact that vide Order 26 Rule 4(3) of the Federal High Court Rules, 2000 processes shall be signed by a legal practitioner or by a party if he sues or defends in person. In reality, ‘Adewale Adesokan & Co.’ which signed the originating summons is not a legal practitioner known to the applicable Legal Practitioners Act, Cap. 207 of the Laws of Federation of Nigeria, 1990. This is so, since it is not a person entitled to practice as a barrister and solicitor with its name 19|Page _..in the earlier case of Registered Trustees, the Apostolic Church v R. Akinde (1967) NMLR 263, it was firmly held and established that a firm of solicitors is not competent to sign a process. It is no doubt that the signature of ‘Adewale Adesokan & Co.’ on the originating summons of the appellant robs the process of competence ab initio as the said firm is not a registered legal practitioner enrolled to practice law as a Barrister or Solicitor in this court.” Other case authorities though not exhaustive in which the Supreme Court of Nigeria declared the originating processes ‘signed in the name of a firm of legal practitioners’ as a nullity include, First Bank of Nigeria Ple v Alhaji Salami Maiwada (2013) 32 WRN 31; Alhaji _Fatai_Ayodele_Alawiye vy Elizabeth Adetokumbi Ogunsanya (2013) 28 WNR 29; Guaranty Trust Bank PLC v Innoson Nigeria Ltd (Supra); and Olayinka Adewunmi vy Amos Oketade (2010) 23 WRN 25 in which the court held as follows— “Tt does not appear that counsel for the appellant has an answer for the objection. There is a big legal difference between the name of a firm of legal practitioners and the name of a legal practitioner simpliciter. While the name of Olujimi and Akeredolu is a firm with some corporate existence, the name of a legal practitioner is aname qua solicitor and advocate of the Supreme Court of Nigeria which has no corporate connotation. As both carry different legal entities in our Jurisprudence of parties, one cannot substitute for the other because they are not synonyms. It is clear that Olujimi and Akeredolu is not a name of a legal practitioner in Nigeria. J say this because there is no such name in the roll of legal practitioners and that violates section 24 of the Legal Practitioners Act. By section 2(1) of the Act, the only person in the profession wearing his professional name to practise law in Nigeria is a legal practitioner and the definition of legal practitioner in section 24 of the Act does not include Olujimi and Akeredolu. This one is not a mere technicality that can be wished aside. It is fundamental to the judicial process as it directly affects the legal process that brought the case of appeal.” In the case of Ministry of Works and Transport, Adamawa State v Yakubu [2013]6 NWLR (Pt.1351)481 at 496, Muntaka-Coomasie JSC said— “The questions that easily come to mind are that an incompetent originating process or processes be amended, or can the incompetence of the process be cured by the amendment?... The fatal effect of the signing of an originating process bya law firm is that the entire suit is incompetent ab initio. It was dead at the point of filing.... The originating process, as in this case, is fundamentally defective and incompetent. It is inchoate, legally non-existent and can therefore not be cured by way of an amendment.” 20|Page Further, in the case of Buhari v Adebayo [2014] 10 NWLR 565 at 587, the Court of Appeal in agreement with the decisions of the Supreme Court stated as follows— “The court cannot, in any event ignore a situation in which the foundations of the claim are based on a worthless ‘writ of summons’ signed otherwise than by a legal practitioner duly enrolled at the Supreme Court of Nigeria. The case was a complete nonstarter rendering the entire proceedings null and void as rightly determined by the learned trial Judge. Basically, an unsigned or irregularly signed writ is worthless and incapable of hitting the ground running in legal proceedings. The writ of summons is incompetent in that it was not issued by a legal practitioner known to law and is consequently struck out. Being an initiating process, the statement of claim and all other processes that swivel on the helpless writ are correspondingly affected by the same virus and consequently rendered incompetent.” [58] This Court is fully aware that it is not bound by these decisions. Nevertheless, the Court acknowledges that at law, decisions of superior courts in foreign jurisdictions are only persuasive as they offer insights and guidance on how similar statutory provisions have been interpreted in those jurisdictions. The Court fully agrees with and adopts the reasoning in those case authorities for being consonant with the interpretation it has ascribed to section 2 of the Legal Education and Legal Practitioners Act which is that a legal practitioner envisaged under law is an animate being and not otherwise. In other words, the Court holds that though there is a difference in the language used in section 2 of the Legal Education and Legal Practitioners Act and that in sections 2 and 24 of the Legal Practitioners Act, 1990, the effect is the same. [59] In dealing with the first issue for determination, this Court agrees with the submission of the claimant that a party wishing to challenge a non-compliance with the Rules or a direction of the Court should proceed by way of an application under Order 10, rule 1 and in Form 4 and not by way of Notice as was case herein. However, in the spirit of proper case management, the Court may, in exercise of its discretion, permit the reliance on less perfect procedural steps, of course, in the absence of prejudice to the other party, if the intention is to attain an expeditious and inexpensive resolution of an issue on its merits. Such a decision will always depend on the facts of a particular case. Where the Court allows or deems an irregular step or document that has not complied with the Rules effectual, it should not be 21|Page considered as carte blanche by litigants and legal practitioners to engage in the wanton disregard of the rules of practice and procedure. [60] It should be recalled that this Court has on numerous or uncountable occasions remarked and emphasised upon the importance of strictly following the rules of procedure in the conduct of litigation. No doubt, parties and their legal practitioners should not be encouraged to become slack in their observance of the rules which are an important element in the machinery for the administration of justice. The Court will no longer under its eyes, tolerate the development of a practice at variance with what is provided for by the rules of practice and procedure. [61] Having said that, the Court is of the considered view that the first issue should be answered in the affirmative as it did not in any way prejudice the claimant. The benefit of taking this position justifies the cost as it saves the expenses the parties would be subjected to if the Court held otherwise. The claimant did not as well formally challenge the non-compliance by way of an application even though he had enough time for doing so upon being served with process. The issue the court was called upon to resolve was a fundamental question that went to the root and substance for the sustenance of the proceeding. It is only for these reasons that the Court, in the exercise of discretion, holds that the notice challenging the validity of the Summons is deemed as an application and therefore considered to be properly and procedurally before it. [62] Turning to the second issue for determination which is ‘whether or not Summons/ statement of case (claim) be struck out having been signed by a person who is not a legal practitioner’ it was the submission by the defendant that the Summons was signed by a “Churchill & Norris” which is not a legal practitioner. According to counsel Order 7, rule 1 (h), CPR, a statement of case must be signed by a legal practitioner or claimant himself or herself. As a result, the Summons and the statement of case (claim) are irregular as they were not signed by a legal practitioner as required by law. There is no legal practitioner in Malawi answering to the name “Churchill & Norris’. In response, the claimant maintained that the defendants have failed to make an application that there is an irregularity. However, if the Court finds that there is an irregularity, such a defect is curable under Order 2, rule 2 of CPR. For that reason, the claimant implored the Court not to render the Summons a nullity. In the least of the circumstances, the Court may just order that 22|Page the irregularity be made good. The order striking out the Summons may not be in the best interest of justice as there will be no basis for the injunction. [63] Based on the detailed discussion and analysis on who, at law, is a legal practitioner, the Court agrees with the submission of the defendants that a firm of legal practitioners is not a legal practitioner contemplated by Order 5 rule 3 and Order 7, rule 1(h) as defined under section 2 of the Legal Education and Legal Practitioners Act. The Court had occasion to look at the Roll and it confirmed that the name “Churchill and Norris” is not inscribed on the Roll. “Churchill and Norris” is not a legal practitioner and therefore not capable to sign the Summons and the statement of case (claim). [64] On the basis of the several authorities cited above the reasoning of which the Court fully adopts, the Court holds that the Summons is incompetent in that it was not signed by a legal practitioner known to law. The fatal effect of the signing of an originating process by a firm of legal practitioners is that the entire suit is incompetent ab initio. It is a nullity. It was dead at the point of filing. The Summons, as in this case, is fundamentally defective and incompetent. It is inchoate, legally non-existent and can therefore not be cured by way of an amendment. See Ministry of Works and Transport, Adamawa State v Yakubu (supra). Once it cannot be said who signed the Summons, it is incurably bad, and the rules of practice and procedure that seem to provide a remedy are of no use as a rule cannot override the principal legislation (i.e. the Legal Education and Legal Practitioners Act). For that reason, this Court also holds that the cases of George Kainja v Director of Anti-Corruption Bureau and Others (supra) and Triza Lunduka v Fletcher Zenengeya and United General Insurance Company (supra) are distinguished from the instant case on both facts and law. Disposal [65] In the circumstances, the Court holds that there is merit in the request that the Summons be struck out for being invalid or a nullity on the ground that it was not signed by a legal practitioner. This was not an irregularity that could be remedied under Order 2 of CPR. The preliminary objection is upheld. The Summons in this case has been found to be fundamentally defective as it was signed by a firm of legal practitioners which in the strict sense of the law is not a legal practitioner. As such the Summons is hereby struck out and all processes which were based on this 23|Page Summons likewise fall away. The claimant shall be at liberty to properly commence proceedings afresh. [66] Before concluding the Court wishes to give guidelines on how processes are to be signed. The Court has been guided by the judgments of Emmanuel Okafor v Augustine Nweke (supra); the Registered Trustees of Apostolic v R. Akinde (supra); and SLB Consortium Limited _v Nigerian National Petroleum Corporation (supra). In the latter case, Rhodes-Vivour JSC said— “All processes filed in court are to be signed as follows: First, the signature of counsel, which may be a contraption. Secondly, the name of counsel clearly written. Thirdly, who counsel represents. Fourthly, name and address of the legal firm.” [67] The considered view of this Court is that this guideline is good law and resonates well with the provisions of Order 7, rulel(h) CPR. The guideline should be adopted for use by all legal practitioners in the preparation of court documents which the law requires that those documents should be signed by a legal practitioner. [68] Considering the nature of the application, the proper order to make with regard to costs is that either party should bear its own costs. Made in Chambers this 11" day of October, 2024. 2g W. Y. Msiska JUDGE 24|Page