National Bank of Malawi v Zgambo & Anor. (Civil Cause 690 of 1997) [1994] MWHCCiv 24 (11 July 1994)

IN THE HIGH COURT OF MA LAW I PRINCIPAL REGI STRY CI VIL CAUSE NO. 690 OF 198 7 BETWEEN: NAT I ONAL BANK OF MAL AWI . . . .. . ..... . . . . . . ..... .. ...... PL A I NT IF F R K J Z GAMBO . ..... . .... . ............... . . ..... .. .... DEFENDANT AND AND AGRICULTURAL MANAGEMENT SER VI CES LTD . ... .. . .... ... THIRD PARTY CORUM: MSOSA, J Jussab, of Co un se l , f or t he Pla i nt i ff Mhango, of Counse l. f or t he Defe nda nt Phiri, Se ni or Cou r t Repo r ter Tsoka ( Mrs ) , Co urt Cl erk JUDGM ENT v-Jhen tria l of t h is case was a bou t Jussab informed the co urt that the p lain tif f is satisfied with what has t he de f e nda nt af t er rea l ising the security been recovered from v1hich the the de f e nda nt The plaintiff, repayment of The effect therefore does not wi s h to pr ocee d wi th the action. of that state me nt was t l1e p l a in t if f was discontinuing the action. to t hese pr oceedi ngs . to co mmence, Mr t he p l aintiff, t he c l ai m i n furn is hed t ha t for l1 ad i n costs Mr Jussab addressed the co ur t o n t he question of costs. He submitted that a l t houg h nor ma lly a pa r ty t hat withdraws an action is condemned the discretion of t he court . He co nte nded t hat s in ce, in the present c a s e t h e the proceedings knowledge of the defe nda nt, t he co urt shou l d either make no order as to costs fo r t he d i sco nt inu a nce or the costs should be awarded to the plaintiff . c om me n c em e n t o f recovered with t 11 e s e c ur i t y was suc h costs are r e c o v e r e d a f t e r t h e d e b t w a s award of t hat a nd t he t he in Mr Mhango submitted t ha t is withd r awi ng h is c l ai m. t he r e are no special circumstances t h is court to award t he costs to the plaintiff that would make who the effect of discontinuance, as pr ov i ded in ord er 2 1/2 - 5/ 9 is that costs on is automatically discontinuance entitled to get h is costs. the plaintiff has t he p l ai ntiff s hould pay t he costs incurred withdrawn his c a se, to the time of the the defendant by discontinuance . is no evidence that t he sec ur i ty was r ea l ised after the commencent of the action. t11 e c l a i m up i n de f e nd in g Mr Mha ngo fur t her s u bmitted that there the de f enda nt Tt1 e r efore si nce He said without le a ve , t l1at - 2 - Mr Jussab, in reply informed the court that the security was realised in Civil Cause No. 729 of 1991 which commenced after the present action. Mr Jussab, further submitted for the third party that the court should excercise its discretion third party by setting aside the third party proceedings in terms of 0.16 r 6 since the defendant has failed to prosecute the third He said that the defendant took out summons party proceedings. for in April 1990 whi c h he has not prosecuted up to date. third party directions in favour of the the same as Mr Jussab, also submitted that the defendant's counterclaim should be struck out because it is res-judicata, the same being substantially the defendant's action the one against the third party in Civil Cause No. 455 of 1980 in which the court ruled that it was statute-barred. Mr Jussab asked this court firstly the third p,irty because proceedings is res-judicata. the defendant has failed to prosecute to set aside or struck out the counterclaim, counterclaim secondly because the and in On third party proceedings, Mr Mhango in reply submitted that since third party proceedings are made inorder to make the then in the third party contribute or indemnify the defendant, event of him being found liable, the third party proceedings fall away when the plaintiff withdraws his claims. He said that even if the court finds the proper way of dealing with the matter is by way of summons before a master as there are no exceptional circumstances in the present case. the counterclaim still subsists, that t o withdraw his claim because It is clear from what Mr Jussab has said that the plaintiff the debt has been has decided recovered to h is satisfaction . . The realisation of the security was made through Civil Cause No. 729 of 1991 which was for the It is therefore clear that realisation of security proceedings. the debt was instant case had already the commenced. I find that the plaintiff was justified in entering a discontinuance. recovered after In the circumstances, The defendant took summons for third party directions which he has failed to prosecute up to date. When the case came up for hearing the counterclaim. The attitude of the defendant clearly indicates that he has no intention to prosecute his claim. the defendant was not to proceed with ready Ordinarily third party proceedings should be by summons to the master. However the law allows the application to be made at trial in a proper case with exceptional circumstances . application aside set to an In the instant case the defendant has not taken any steps which would indicate that he wishes to pursue his counterclaim. The defendant was aware trial, several months before the date of hearing. This was even before the time that the Chief Justice adjourned the case to enable the to find out if plaintiff to r econcile their accounts the case was ready for inorder that - 3 - I would is a balance record. say tl1e defendant. to be paid by there The Cl1iPf Justice pointed out at that time that the third party proceedings taken any were still on the action. defendant has abandoned his claim. the submission made by Mr the defendant has handled the third party proceedings would qualify as exceptional circumstances upon wh ic h the third party proceedings may be set aside at trial. third party proceedings with costs to the plaintiff. intents and purposes, I therefore agree with the way The defendant still has not that for all I set aside Consequently Jussab tl1at the I have further examined whether the counterclaim are similar to those that were raised in Civil Cause No. 455 of 1980 wherein the court ruled that the claims in that case were statute-barred. I find that the issues in both cases are related and that they arose at the same time and that if I had allowed the plain t iff t o raise the defence of res-judicata. tl1e counterclaim issues raised it was open to proceed, the to in The general rule regarding costs the successful i s o n l y a g e n e r a 1 r u I e p a r t y w i 1 1 g e t and may have exceptions depending on The court has a discretion in awarding costs. All the circumstances t 11 a t o f reason and justice prevails . t h e c o s t s . H o iv e v e r t h e c a s e s 11 o u 1 d b e i n t o c o n s i d e r a t i o n the circumstances. t o e n s u r e t a k e n that t 11 i s is I already pointed out that the plaintiff decided to withdraw his claim because he is satisfied with what he has recovered and does not find it necessary to proceed with his claim. I am of the view that the determining factor as to whether the plaintiff should pay t he costs or not is the stage in the proceedings at which the debt was recovered. In the present case the pleadings closed in November 1989 and the debt was recovered in Civil Cause No. 729 of 1991 which commenced after the close of the pleadings in the present case. the plaintiff. In the circumstances I award the costs to Made in Chambers this 11th day of July 1994, at Blantyre. MRS ASE MSOSA JUDGE