Mijiga v Malawi Revenue Authority (Revenue Cause 3 of 2019) [2019] MWHC 256 (21 November 2019)

IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY REVENUE CAUSE NO. 3 OF 2019 RACHEL MIJIGA t/a H. S. WINEHOUSE .............0cceeeeeeeeee CLAIMANT AND THE MALAWI REVENUE AUTHORITY ..............ccesceeees DEFENDANT CORAM: HON. JUSTICE R. MBVUNDULA Claimant absent, unrepresented Kambuwa, Counsel for the Defendant Chimang’anga, Official Interpreter ORDER Two grounds were raised by the defendant in an application to strike out the present matter from the cause list. The first is that the matter was purportedly commenced under Order 53 of the Rules of the Supreme Court (hereinafter “the RSC”) when the appropriate and applicable rules are the Courts (High Court) (Civil Procedure) Rules, 2017 (hereinafter “the CPR 2017”). The second ground is that the lawyer who purportedly instituted the proceedings on behalf of the claimant did not, at the time, have the right of audience as she had no current licence to practice as legal practitioner in this jurisdiction. Regarding the first ground the brief submission of the defendant was that the RSC based upon which the matter was purportedly instituted are no longer applicable. This submission does not require any argument. It is notorious that the RSC were 1 replaced as rules of procedure in this court by the CPR 2017. The first ground is therefore upheld. Regarding the second ground the list of licenced legal practitioners was availed to the court by the defendant, under oath, and indeed the name of Mrs Violet Jumbe, the lawyer who purportedly instituted the proceedings on behalf of the claimant, does not there appear. | am therefore inclined to agree, in the absence of anything showing unjustified omission of her name from the said list, to accept that when she instituted the proceedings she had no licence to practice as a legal practitioner and had no right of audience before the court. What is the effect of this? This issue came up and was considered in Judicial Review Cause No. 3 of 2019 (Principal Registry): The State and Inspector General of Police, The Commissioner General of the Malawi Revenue Authority, ex parte Mukhtar Khan where this court followed the decision in Haji Abdul Wahab Jagot and 2 others v OG Plastics Industries (2008) Limited and another Commercial Cause No 64 of 2019 (Commercial Division Blantyre Registry) holding that where a party is represented by a legal practitioner who had no current practice licence all process taken out by that legal practitioner and/or her firm or any of her agents on behalf of that party are a nullity and should be struck out with costs. I am inclined to take the same course in the present matter. I accordingly grant the prayer to strike out the matter from the cause list, with costs to the defendant, on the two grounds, firstly, that the matter was purportedly commenced under the RSC when the appropriate and applicable rules are the CPR 2017, and, secondly, that the lawyer who purportedly instituted the proceedings on behalf of the claimant had no right of audience as she did not hold a current licence to practice as legal practitioner in this jurisdiction. Made in chambers at Lilongwe this 21‘ day of November 2019. anheeat JUDGE