Muliko t/a Muliko Enterprises v Sealand Investments Limited (Commercial Case 65 of 2018) [2019] MWCommC 1 (29 January 2019)

IN THE HIGH COURT OF MALAWI (COMMERCIAL DIVISION) LILONGWE REGISTRY COMMERCIAL CASE NO. 65 OF 2018 BETWEEN: BONIFACE MULIKO t/a MULIKO ENTERPRISES. .......0ccccccecceeceee ceases enee nae ea ee eee nee eee senens CLAIMANT And SEALAND INVESTMENTS LTD..........::::::eeeee eset eee tees DEFENDANT Coram: Hon. Justice Annabel Mtalimanja Mr. Chikumbutso Chakachadza, Counsel for the Claimant Mr, Emmanuel Theu, Counsel for the Defendant Mr. Eric Ndhlazi, Court Clerk Mtalimanja, J RULING 1. On 8" January, 2019, the Claimant filed an ex parte Application to amend their Application for Production of Documents and Audit that was filed on 20'" September, 2018. The Application was granted ex parte. Page 10f4 2. By way of background, this Application of 20" September, 2018 was set down for hearing on 22"! November 2018. At the said hearing, Counsel for Claimant addressed the Court and argued the Application. When it was the Defendant’s turn to address the Court, Counsel for the Defendant stated that the Defendant was opposing the Application and sought the leave of the Court to adopt Sworn Statements that had been filed by the Defendant in such opposition. At this point, before the leave was granted, Counsel for the Claimant objected to the admission of the Sworn Statements, on the ground that the same had been filed out of 2 clear days. Following the objection, the hearing was adjourned at that point to allow the Claimant time to respond to the Defendant’s Sworn Statements before the Defendant could continue arguing their opposition to the Application. 3. The sought for amendment was to amend that partly heard Application. 4. Indeed as submitted by the Claimant, an amendment can be made at any time. However, as per 0.7, r. 23(2) of the Courts (High Court) (Civil Procedure) Rules, 2017(“the Rules”) after the closure of pleadings, amendments are to be made with the leave of the Court or the consent of the parties. 5. Depending on the nature of the Application, an Application for amendment can be made ex parte or inter partes. 6. The amendment in issue herein was made and granted ex parte. 7. Having listened to the arguments of the parties and considered the same, | am inclined to agree with the Defendant that this particular amendment Page 2 of 4 ought to have been made inter partes, considering that it had the effect of, prima facie, pre-empting the Defendant’s arguments in opposition to the Application for Production of Documents and Audit, that the Defendant had already filed prior to the ex parte Application to amend the said Application. . Given the said nature and effect, the Defendant ought to have been given a chance to be heard by way of an inter partes Application. . Having not been heard, it is indeed unfair and puts the parties at an unequal footing. 10. Whilst indeed under 0.7, r.23 (3) of the Rules the Court could make an order of costs to rectify and remedy steps that have been taken on the amendment, this is not one of those. 11. The nature of the prejudice occasioned to the Defendant, i.e. not giving them a chance to be heard on an Application that has a fundamental bearing on their arguments on the substantive Application, cannot be cured by a mere order of costs, unless the Defendant acquiesces or consents to the Order of amendment, which is not the case in this case. 12.1 must record that perhaps the Court also did not take the time to consider the context of the Application for amendment fully before granting the Order ex parte. 13. In the sum therefore, I agree that the prejudice occasioned by the ex parte amendment is not curable. Page 3 of 4 14.1 have considered O.2 of the Rules, whether the Court can order costs to rectify the non-compliance. In my considered view, the issue here is beyond costs. What we have here is not mere non-compliance with the Rules. It is a fundamental issue where one party has not been heard and an order has been granted that adversely affects them. 15.1 therefore set aside the Order that was granted ex parte to amend the Application and consequently all processes attached to the amendment are also set aside. a, 16. We will therefore proceed to hear the Application as it was filed on 20" September, 2018. Counsel for the Defendant will continue addressing the Court from where he was objected to at the last hearing. Meptavcceny Annabel Mtalimanja, 29" January, 2019 ee 15:00pm Til. Page 40f 4