Mkandawire v Banda (Civil Cause 30 of 2019) [2023] MWHCCiv 34 (24 October 2023)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI MZUZU DISTRICT REGISTRY CIVIL DIVISION CIVIL CAUSE NO. 30 OF 2019 BEFORE HONOURABLE JUSTICE KONDOWE BETWEEN DR JOHN MKANDAWIRE ........cccccccssscccsssensssseenerscsseecssssesseecessee LAIMANT DR: WILSON BANDAS... ...ccorsennawsessnsniwunconsicae sie gutuUe ee steleagiSs ianennenne DEFENDANT CORAM: HONOURABLE JUSTICE MAUREEN KONDOWE Kambalame, Counsel for the Claimant Manda, Counsel for the Defendant Miss I, Mabaso, Senior Court Clerk RULING 1. BACKGROUND TO THIS RULING 1.1 By an irregularly-incomplete specially-endorsed summons dated 8" Pebniary, 2019 the Claimant commenced this legal action against the Defendant. The Claimant who is legally represented did not indicate the authority of law on the basis of which he filed it before this court and subsequently served it on the Defendant as he alleged. Attached to this summons were a statement of case and a list of documents both dated 24" January, 2019. The Claimant also filed and served a sworn statement also dated 24" January, 2019 which verified the statement of case. The Claimant also filed and served a sworn statement also dated 24" January, 2019 which verified the list of I documents. This latter sworn statement was never commissioned. The Initial Direction that the Claimant filed with this court and served on 7" March, 2019 on the Defendant is dated 13" February, 2019. 1.2 The Defendant who is legally represented filed his Statement of Defence to the claims of the Claimant dated 22"! March, 2019. The Defendant also filed a sworn statement dated 22™ March, 2019 that verified the Defence. He also filed a List of Documents dated 22"¢ March, 2019. A sworn statement also dated 22"¢ March, 2019 verified the List of Documents. 1.3 By an inter partes application to dismiss this legal action for want of prosecution dated 16™ May, 2023 the Defendant sought an order of this court to dismiss this legal action on the alleged ground that the Claimant had allegedly failed to prosecute it expeditiously ever since he allegedly got served with an alleged sworn statement in response and in opposition to an application for an alleged order of interlocutory injunction. The application was brought before this court pursuant to Order 12 rule 54 of the Courts (High Court) (Civil Procedure) Rules, 2017 (“the 2017 Rules”). It was supported by a sworn statement dated 21° April, 2023 which Counsel for the Defendant swore. APPLICATION SUPPORTING SWORN STATEMENT ALLEGATIONS 2.1 Through paragraphs 4, 5 and 6 of the Application Supporting Sworn Statement dated 21* April, 2019 the Defendant alleged the following matters against the Claimant: (a) The Claimant allegedly commenced this legal action against the Defendant by way of specially-endorsed summons allegedly on 28" January, 2019. He allegedly sought the following alleged reliefs: (i) A declaration that the Defendant is not entitled to erect an alleged brick fence on the alleged premises of the Claimant; (ii) A permanent mandatory injunction mandating the Defendant to demolish the alleged brick wall fence and any other structure that he allegedly built on the alleged premises of the Claimant; (iii) Damages for alleged trespass including alleged aggravated damages; (iv) Interest on the alleged damages pursuant to section 65 of the Courts Act; and (v) Costs of this action; (b) The Claimant and his legal practitioners have allegedly not taken any step in these proceedings allegedly since they served a notice of change of legal practitioners allegedly dated 7"" May, 2021; (c) The Claimant and his legal practitioners have allegedly failed to prosecute this matter further and their conduct allegedly clearly shows that they are allegedly not ready to allegedly prosecute this matter further. Their alleged delay in allegedly prosecuting this matter is allegedly inordinate. Their action allegedly resulted into an alleged abuse of the process of this court; and 2.2 Paragraph 7 of the Application Supporting Sworn Statement alleged that it is for the reason of these matters and in the interest of justice to have this matter struck out with costs. 2.3 The above alleged matters are the legal basis on which the Defendant sought the order to have this legal action allegedly dismissed for alleged want of its prosecution with costs. APPLICATION OPPOSING SWORN STATEMENT ALLEGATIONS 3.1 The Claimant opposed the application for the order to dismiss this legal action for want of prosecution that the Defendant sought before this court. He filed an Application Opposing Sworn Statement dated 19°" July, 2023. His Counsel swore the Application Opposing Sworn Statement. Through this Application Opposing Sworn Statement dated 19" July, 2023 the Claimant alleged the following matters against the Defendant: (a) Paragraph 4 of the Application Opposing Sworn Statement alleged that the Defendant was allegedly misled in allegedly asserting that the Claimant is allegedly guilty of the alleged inordinate delay in the prosecution of this matter. It is this honourable court that has delayed in setting this matter down for a Scheduling Conference; (b) Paragraph 5 of the Application Opposing Sworn Statement alleged that for the avoidance of doubt the Claimant already filed a draft Notice of Scheduling Conference in this matter for this court to endorse it; (c) Paragraph 6 of the Application Opposing Sworn Statement alleged that it is common knowledge that the fixation of dates for the hearing of any court process is an exclusive preserve of this honourable court and not the parties including the Claimant in this matter. The Claimant cannot therefore be penalized for this delay; and (d) Paragraph 7 of the Application Opposing Sworn Statement alleged that the Claimant maintained that the present application by the Defendant lacks merit. He therefore further prayed that it should be dismissed with costs. The application is allegedly grossly irregular. THE EVIDENCE 4.1 The Claimant produced and exhibited in his Application Opposing Sworn Statement a certified copy of a Notice of Scheduling Conference untidily marked “GJK1”. In his list of documents dated 24" January, 2019 the Claimant produced and exhibited an uncertified and undated copy of a Location Plan; an uncertified copy of an Offer of Plot of Land and Payment Receipts dated 16" November, 2018; an uncertified copy of a Grants Permission [Mzuzu Town and Country Planning Committee] dated 29" November, 2018; and an uncertified copy of a Report from the Regional Surveyor General dated 10" December, 2018. 4.2 The Defendant produced and exhibited no documents of evidence in his Application Supporting Sworn Statement dated 21“ April, 2023. In his list of documents dated 22" March, 2019 the Defendant produced and exhibited an uncertified copy of a letter dated 18'" December, 2012 from the Commissioner for Lands (N) to him for an Application for a Lease of Plot Number A4/L/19 comprising 0.12 of a Hectare at Katoto Area 4 in the City of Mzuzu; and an uncertified copy of a Certificate of Lease dated 1*' December, 2015 for Title Number Katoto 31/439 for the Registration District of City of Mzuzu. Although the Defendant also listed a lease dated 21° April, 2015 he did not produce and exhibit its certified copy. THE LAW ON THE GRANT OF ORDERS TO DISMISS A LEGAL ACTION FOR WANT OF PROSECUTION 5.1 UNDER THE 2017 RULES 5.1.1 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 or to comply with an order of this court not later than the end of the period specified under these Rules or the order and he does not do what is required before the end of the period. 5.1.2 Order 12 rule 54(2) of the 2017 Rules further states that this court may dismiss the proceeding or make any other order that it considers appropriate. 6. DETERMINATION OF THE APPLICATION OF THE DEFENDANT 6.1 Through his inter partes application to dismiss this legal action for want of prosecution dated 16" May, 2023 the Defendant sought an order of this court to dismiss this legal action on this alleged ground. Through this application the Defendant urged this court to grant him the order to allegedly dismiss this legal action for want of prosecution on the ground that the Claimant had allegedly not prosecuted this matter expeditiously. The Defendant alleged in paragraph 5 of his Application Supporting Sworn Statement that the Claimant had allegedly not taken any further step in his bid to prosecute this legal action allegedly since his legal practitioners served a notice of change of legal practitioners dated 7" May, 2021. The Defendant filed skeleton arguments dated 21° April, 2023. Those filed by the Claimant are dated 17" October, 2023. 6.2 This court declines to grant the Defendant the order he sought against the Claimant to dismiss this legal action for want of prosecution for the following reasons: 6.2.1 This court observed that the application that the Claimant made is irregularly discrepant. The inter partes application to dismiss this legal action for want of prosecution alleged that the Claimant had allegedly failed to prosecute this matter expeditiously on the alleged ground that he had allegedly not taken any further step since he allegedly got served with a sworn statement in response and in opposition to an application for an alleged order of interlocutory injunction. Contrary to this alleged ground paragraph 5 of the Application Supporting Sworn Statement alleged that the Claimant had allegedly stopped prosecuting this legal action after he allegedly served a notice of change of legal practitioners dated 7" May, 2021. This court found no documents on its file that confirmed that the Defendant served the Claimant with the alleged sworn statement in response and in opposition to an application for an alleged order of interlocutory injunction. It is so ordered. This court further found that there are no documents on its file that confirmed that the Claimant filed an application whether ex parte or inter partes before this court for this alleged order of interlocutory injunction. It is so ordered. 6.2.2 This court also observed on its close examination of the documents that are available on its file that while evidence is available on the file of this court that confirms that a notice of change of legal practitioners dated 7 May, 2021 got filed with this court on behalf of the Claimant there was ample evidence of the further prosecution of this matter by the Claimant beyond this date. The Claimant corresponded with this court by letter dated 18" May, 2023 to notify it that his Counsel would not attend adjourned mediation proceedings scheduled for 21° May, 2021 for the reasons that he himself would be out of the jurisdiction and his Counsel would attend to other court business before the Lilongwe District Registry of the High Court in The State (On the Application of Village Headman Mangazi and All his Subjects) v. Acting Regional Commissioner for Lands Civil Cause Number 171 of 2017. In fact this court found that the Defendant accepted service of this letter dated 18" May, 2021 on the same day. This court further found that subsequent to this service the Claimant and the Defendant drew up, signed and filed an Agreed Order Terminating Mediation which bears the filing date of 26"" November, 2021. These are the matters that enabled this court to find and conclude that the allegation that the Claimant took no further step in the prosecution of this matter after 7" May, 2021 was not true. It is so ordered. It is therefore the considered opinion of this court that it follows from the matters that this court has highlighted in sub paragraphs 6.2.1 and this sub paragraph of this ruling that the application that the Defendant made for an order to dismiss this legal action for want of prosecution was made without any credible evidence and legal basis that supported it. It is so ordered. This court noted that in opposing this application the Claimant produced and exhibited a certified copy of the untidily-marked Notice of Scheduling Conference marked “GJIK1”. This court noted from the court date stamp on this document that the Claimant alleged that he filed this on 9" December, 2021 an alleged further step in the prosecution of this legal action following the drawing up of the Agreed Order Terminating Mediation dated 26" November, 2021. At the time of writing this ruling the file of this court did not have the original hard copies of this alleged court document. This court was therefore not able to confirm that this is admissible credible evidence on which the Claimant can rely to prove the last step that he actually took. It is so ordered. This court directs the Claimant to bring the original hard copies in case they are still in his control 7. custody and possession or to file this court document again so that the Scheduling Conference can proceed. It is so directed. 6.3 This court has declined to grant the Defendant the order to dismiss this legal action on the alleged but unproven ground of its alleged want of prosecution that he sought from this court against the Claimant for the reasons stated in this ruling. This court therefore dismisses the application that the Defendant made for this order. It is so ordered. Section 30 of the Courts Act (Cap. 3:02 of the Laws of Malawi) states that costs of court proceedings are in the discretion of a court. Order 31 rule 1(a)(b) and (c) of the 2017 Rules amplifies this issue. 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 exercises its discretion on costs to direct and order that the legal practitioners for the Defendant shall personally pay the Claimant the costs of this application. It is so ordered. The legal practitioners for the Defendant did not demonstrate to this court that they fully and carefully applied their minds as regards how they were to professionally and ably proceed with and handle this application on behalf of the Defendant. It is so ordered. This court thoughtfully considers that they certainly did not look at the documents that are on the file of this court after they decided to make this application but before filing it with this court. It is so ordered. This unprofessional conduct on the part of the legal practitioners for the Defendant utterly defeated the overriding objective of Order | rule 5(1)(b) of the 2017 Rules which urges this court to deal with proceedings justly by among others saving expenses. The costs that the legal practitioners for the Defendant are directed to personally pay the Claimant shall be agreed upon between them and the legal practitioners for the Claimant failing which the Registrar is directed to assess and award them to the Claimant on a standard basis on a date that he is at liberty to fix. It is so ordered. THE RIGHT OF THE DEFENDANT TO APPEAL AGAINST THIS RULING 7.1 The Defendant has a right to appeal against this ruling 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 the High Court or Judge in any civil cause or matter. Section 2 of the General Interpretation Act (Cap. 1:01 of the Laws of Malawi) defines “judgment” as including this decision. This court confirms that the Defendant is at liberty to appeal against this ruling before a single Member of the Supreme Court of Appeal in compliance with section 23(1)(a) of the Supreme Court of Appeal Act. It is so ordered. Section 23(1)({a) 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 14 days of the delivery of the judgment that is to be appealed against. It is so th oN _ 2S 4 Delivered at Mzuzu this ...... AL. — day of. Q CTOBERL 2023 Epes M. KONDOWE ordered. JUDGE