Ngwira & Chiumia v Ngwira (MSCA Civil Appeal 16 of 2020) [2021] MWHCCiv 215 (23 June 2021)

IN THE MALAWI SUPREME COURT OF APPEAL SITTING AT LILONGWE MSCA CIVIL APPEAL NO. 16 OF 2020 (Being High Court Civil Cause No. 658 of 2017, Lilongwe District Registry) ON THE 25™ DAY OF NOVEMBER, 2020 BETWEEN PATRICK NGWIRA...........ccccccsscecsscsccees 18* APPELLANT MR, CHIUMIA ssssssssnsssssens seas consens ctacsaases 2°? APPELLANT AND FRANCIS NGWIRA...........ccccccccsccccssccsccees RESPONDENT CORAM: THE HONOURALE CHIEF JUSTICE, A. K. C. NYIRENDA SC HONOURABLE JUSTICE E. B. TWEA SC, JA HONOURABLE JUSTICE R. R. MZIKAMANDA SC, JA HONOURABLE JUSTICE A. C. CHIPETA SC, JA HONOURABLE JUSTICE L. P. CHIKOPA SC, JA HONOURABLE JUSTICE F. E. KAPANDA SC, JA HONOURABLE JUSTICE J. KATSALA, JA Ki. BOK voccivcere seesuenersmsccvercuoneeneneav COUNSEL FOR THE APPELLANTS M. KAUTSI..... cece see e eee eeeeee COUNSEL FOR THE RESPONDENT W. SHATBO (ATTIMU i. cccccsscgsvcssuscveusves JUDICIAL RESEARCH OFFICERS C. CHIMTANDE/E. MINIKWA........... 0. cee eeeeeeeeeee ees RECORDING CLERKS 2. MTHUNZL/V. MOMBERA os sssvessavesecnmmrncca seins COURT REPORTERS JUDGMENT NYIRENDA, SC, CJ The agreed facts in this matter are that the respondent is the first appellant’s son. The marriage between the first appellant and the respondent’s mother was since dissolved. In issue is a piece of land Title Number 25/SQ173 situated in Area 25 in Lilongwe City. The second appellant bought that piece of land from the first appellant. What is in issue in this case is whether at the time of sale the piece of land belonged to the first appellant or it had been passed on to the respondent by the first appellant and the respondent’s mother. The respondent claims that the piece of land was advanced to him while his father and his mother were still married and that the land was in fact subsequently registered in his name. It is the respondent’s claim, in the court below, that at the dissolution of his parents’ marriage, the court awarded him the piece of land as part of its order distributing matrimonial property, apparently because his parents had already given the land to him. The case for the respondent is therefore to stop the first appellant from selling the property to the second appellant. The respondent seeks an order of permanent injunction. In their joint defence, which strictly should have been split because of their different positions in the matter, the two appellants contend that the piece of land does not belong to the respondent. The first appellant’s main position is that the property was never given to the respondent during or after the marriage with the respondent’s mother. That at no point did he pass on ownership of the property to the respondent and further that he is not aware of the court making an order giving the property to the respondent at the time of dissolution of marriage between him and the respondent’s mother. According to him, the piece of land was his at the time he sold it to the second appellant. The second appellant’s case is that he is a bonafide purchaser without notice of any competing title or interest on the land to that of the first appellant. According to him, he took all due diligence to ensure that the property was not encumbered at the time he bought it. He has since proceeded to develop the land. This appeal is very narrow because of the stage at which the decision of the court below was made. The court below terminated the appellants’ case at mediation stage. The appellants’ defence was struck out on account of failure to attend a mediation session. The appeal is against the exercise of discretion by the court below to strike out the defence, at that stage of the case, in light of the law and the facts around what happened on the day mediation was set ‘to be heard. The amended grounds of appeal state: “(a) The learned Judge erroneously exercised his discretion under Order 13 Rule 6 of the Courts (High Court) (Civil Procedure) Rules 2017 when he refused to restore the Appellants’ defence and thereby erred in law. (b) The learned Judge erred both in law and in fact when he held that the Appellants did not have a genuine case to raise in response to the Respondent’s action. (c) The decision of the learned Judge complained of was against the weight of the evidence and occasioned an injustice to the Appellants. On the day set for mediation, the respondent was in attendance. Although the first appellant was at the court premises, his lawyer did not turn up. The second appellant was not at the court. When the matter was called, a court clerk was sent to cal] the first appellant to come and appear in person. Because his lawyer was not present, the first appellant declined to go and appear before the learned Judge. Since there was proof of service of the hearing, the learned Judge proceeded to hear the respondent, who sought that the defence be struck out. The court was persuaded. Accordingly, the defence was struck out on account of the appellants’ failure to attend without reasonable cause having been served with a Notice of Adjournment. Soon upon becoming aware of the determination, the appellants made a joint application to have the matter restored, alongside an ex-parte application for stay of execution of judgment pending an application to set aside the judgment. The application was attended to by a different counsel from the one who had failed to attend court at the time the appellants’ defence was struck out. In his submission counsel branded his predecessor as negligent in failing to attend court. Counsel however pleaded with the court not to punish the appellants on account of the negligence of their lawyer. The court was not persuaded by counsel’s plea and maintained its decision. The decision of the court, which is very brief, states: “ORDER/ DECISION Having gone through all the relevant documents in support of the applications, first to restore the case of the defendants and secondly to suspend the enforcement of the judgment entered in default of attendance by the defendants my court hereby declines both applications. In the first place the defendants have not shown that their lawyer was not aware of the appointed date. Rather they argue that he was simply negligent to attend to a court appointment. Actually if the story of the first defendant is accepted at face value Counsel Nkhono actually told his client that he was on his way to court. If anything may be the defendants should obtain a remedy against their lawyer for negligently handling their case. However, they cannot disown their conduct as he was the lawfully recognized agent in their proceedings. Above and beyond that the conduct of the first defendant in refusing to appear in Chambers when he was already at Court premises doesn’t show any seriousness towards court processes. Indeed, as has been pointed by the claimant the defendants do not seem to have a genuine case to raise in response to the present action and may be seeking to exploit procedural technicalities to simply slowing the litigation process and hence add to the cost thereto. Under the current Civil Procedure rules the court is enjoined to consider saving costs as a factor in law. The rules are applied to a given case. To permit the defendants to benefit from their own decision — whether through Counsel on record at the time or in person to fail to attend the prescheduled mediation might be a dereliction of judicial responsibility on my court’s part. I have therefore declined such an irresponsible request and hereby dismiss the present applications as lacking in merit and substance. So ordered.” Order 13 rule 6 of the Courts (High Court) (Civil Procedure) Rules, 2017, provides for what is relevant to what transpired in this matter as follows: “(1) Where it is not practical to conduct a scheduled mediation session because a party fails without good cause to attend within the time appointed for the commencement of the session, the Judge may- (a) dismiss the claim, where the non-complying party is a claimant, or strike out the defence, where the non-complying party ts a defendant; (b) order a party to pay costs; or (c) make any other order that is deemed just. (2) A party whose case has been dismissed for non-attendance may apply to the Court for restoration of the case.” Counsel Soko for the appellants submits, substantially, that the court below was punitive in outright striking out the defence when the scheme in Order 13 rule 6 is graduated. That the rule gives a court wide latitude in determining the appropriate sanction for failure to attend a mediation. It is further submitted that it is not in the practice of courts to deny parties the opportunity to have their matter determined on merit. He refers to the decision in Msindo v Dairiboard and Malawi Limited, MSCA, Appeal Case No. 31 of 2011 where the court said: “a court should therefore not be allowed to, in the name of good case management and the fair and expeditious disposal of matters, proceed in a manner that occasions injustice to the parties before it, denies parties an opportunity to have their matters decided on merits, effectively denies them access to the courts, or permits a reckless disregard to the amount of resources expended on litigation. On the contrary, a court must manage its case load in a manner that enhances our people’s access to the courts, ensures that their matters are dealt with fairly, expeditiously and in a manner that pays due regard to the amount of resources i.e. time and treasury expended towards litigation. Where therefore a party should, as does happen, be sanctioned for failure to comply with rules of procedure, directions, principles of good case management 7 etc. it is important firstly that the trial court sanctions the correct persons. Secondly, if we may borrow from criminal jurisprudence via R v Shauti_8 MLR 69 the sanctions must fit the transgressor, the transgression, be fair to the litigants and be tinged with mercy.” Mr Soko argues that the court below did not explain why it chose the most punitive sanction. It is also felt that the court lost out on the overriding objective of civil litigation as emphasized in Order 6 rule 5, which is to deal with cases justly. We have also been referred to section 41 of the Constitution which provides for the right to final settlement of legal issues, the implication being that legal issues should not be terminated on _ technicalities, among other considerations. It seems to us that the decision of the court below was largely influenced by the fact that counsel for the appellant had been served with appropriate notice of the scheduled . mediation hearing. By not turning up for the hearing and the court not having been informed of the reasons for counsel’s absence, the court weighed in on counsel’s conduct and in its words, the appellants could not disown the negligent conduct of their lawfully recognized agent. It was therefore more to counsel’s negligence that the matter found its fate. The court also referred to the fact that the first appellant refused to attend the hearing although he was within court 8 premises and was invited to come and attend. In the court’s opinion, that was a demonstration of lack of seriousness. We will hasten to say that this observation was unfortunate. It will not preoccupy us much. The first appellant was represented by counsel and therefore expected his lawyer to be present. He obviously, in our opinion, must have felt insecure, and perhaps even fearful, to dare it alone before the learned Judge. It is not uncommon for ordinary citizens to be apprehensive and feel uncomfortable before courts. We believe that his declining to attend the proceedings on his own when he had chosen to be legally represented should not have been faulted by the learned Judge. For the respondent, the primary submission is that this matter was entirely in the discretion of the court. That the court below having exercised its discretion on the facts and the applicable law, this Court should be slow to interfere. We have been referred to the cases of Willy Kamoto v Limbe Leaf Tobacco Company Limited [2010] MLR 467 and Kamwamba v Njala and Sons [1971-72] MLR 75 supporting the position that appellate courts will be slow to interfere with a trial court’s exercise of discretion. Fortunately, we are familiar with these authorities emanating from our own courts, including this Court. The same authorities have been cited by the appellants. We will certainly apply the principles enunciated in those cases to the circumstances of the matter before us. We should at this point also confirm that we will attend to this matter by way of rehearing as we always do, and what that entails, as pronounced in Mutharika and the Electoral Commission v Dr. Chilima and Dr. Chakwera, MSCA Constitutional Appeal No.1 of 2020. We will reconsider the entire proceedings before the court below, looking at the facts, the evidence and the law which informed the decision being appealed against. We have not received or admitted any further material at the hearing and are therefore looking at only what was before the court below. The facts are that mediation failed several times. The record does not explain why mediation failed on earlier occasions except one, when it is said the learned Judge was occupied with other responsibilities. According to the appellants, the only time they failed to attend court was this last occasion when the court struck out their defence. It is therefore not clear to us when the court below refers to the importance of saving cost in litigation when it could not be said the case failed on several ptevians occasions on account of the appellants’ absence. It might well be that the court itself caused all of the earlier postponement of mediation. What is on record is that the application for restoration of the case was made by counsel Moses Nkhono who also swore an affidavit in support of the application. The affidavit contains an elaborate explanation about why counsel failed to attend court on the day in question. He had requested 10 another counsel to attend to the matter on his behalf because he had another case before a different judge. That other counsel met with a car accident on his way to court and so he also could not make it. At the hearing of the application to restore, the appellants were represented by counsel Matumba and not Nkhono. What we find strange is that while relying on counsel Nkhono’s documents for the rest of the application, counsel Matumba decided to abandon that part of counsel Nkhono’s affidavit that explained why he was not able to appear before court. What is worse is that counsel Matumba presented counsel Nkhono as negligent; negligent for not having attended the mediation. We are sure that both counsel Matumba and the learned Judge must have read the affidavit of counsel Nkhono. Neither of them comments on what counsel Nkhono deponed, apart from choosing to brand him as negligent and the court relying on that assertion. In our view, counsel Matumba’s approach and how he described counsel Nkhono, is what destroyed the case for the appellants; rather unfortunate, we must say. We are hesitant to accept that the fact of negligence on part of counsel Nkhono was established. Both counsel Matumba and the court below could have done better in raising and relying on such a serious and far reaching allegation against counsel Nkhono. Counsel Nkhono’s affidavit was never 11 discredited, apart from counsel Matumba choosing not to rely on it. We might go a little further. Even if it had been established that counsel Nkhono was negligent in that he did not attend a scheduled mediation when he had been served with the notice of hearing, in the circumstances that we have explored earlier, that should not have resulted in striking out the appellants’ defence. We doubt whether a single default by counsel, in a matter that had suffered several previous postponements, possibly on account of the court itself not being available, for we do not know what caused the postponements, should have resulted into the drastic measures that the court took. We acknowledge that negligence by counsel in the conduct of litigation can result in cases being lost and that litigants who find themselves in such a situation would be entitled to seek damages from their estranged counsel. What is primary though is that the fact of negligence must be established, and clearly established, we believe, before a court can punish a litigant for the sins of counsel as agents. Without, in anyway, attempting to undermine the importance of due diligence, astuteness and responsibility to clients on part of counsel and the role of our courts in ensuring appropriate case management to save time and costs, we would associate with the sentiments of Justice 12 Chipeta in ED Kakhombe v NBS Bank [2013] MLR 53 when he expressed doubts about how fair vicarious punishment of litigants for the sins of their counsel can be said to be, especially when there is no explanation offered by the court for ignoring all other possible penalties, where available. What should also be acknowledged is that the reality might actually be painful for the litigants, having lost their case and having to engage another counsel to try and salvage their loss. It will not farfetched to imagine that such an experience may be energy sapping and debilitating on the litigant. It is for that reason that taking the course of punishing a litigant for the sins of their counsel should be carefully thought through and sparingly used. That leads us to Order 13 rule 6, that was central in this matter. We have set out the rule earlier in this judgment. Obviously, the rule is graduated. The court may dismiss the claim; it may make an order for costs or it may simply make an order that is deemed just. The court has a fairly wide latitude in the orders that it may make, premised on what is just in the matter before it. The overriding purpose of this provision is assist the court balance the court’s power, essential in managing proceedings before it, and the interest of justice. What is further is obvious to us is that even in the quest to manage proceedings, the construction of a rule of this nature can only be that extreme measures should be left for extreme violations, in the very spirit of a graduated rule. 13 We have taken time to analyze the facts that transpired in this case that led to the striking out of the defence. While it was within the law for the court below to strike out the defence, we would put to question the manner in which the court exercised its discretion on the law and on the facts before it. This Court has discussed the approach of appellate courts in instances of exercise of discretion by lower courts. The role of an appellate court is not to rush and replace its own discretion for that of the lower court. The appellate court will generally be slow in doing that; but it will not abdicate its responsibility to do so when it is appropriate so todo. We have discussed the applicable principles in Mutharika and the Electoral Commission v Dr. Chilima and Dr. Chakwera cited above and also in Kamoto v Limbe Leaf Tobacco Company Limited [2010] MLR 467. Therefore, while this Court will be slow to interfere with a trial court’s exercise of a judicial discretion, it will not hesitate to do so where the order made causes injustice to one or both of the parties. Coming to the case before us, we do not agree that on the facts and on the applicable law, the court below was justified in taking the course of striking out the defence. The court could have adjourned the matter and condemned the appellants to costs. It could have made other orders that would have been just in the circumstances of the case. 14 It also occurs to us that this matter was terminated at mediation stage. The court below partly relied on facts and evidence in the matter that was made available to it at mediation stage. The court used that information to determine, in its words: “ _. indeed, as has been pointed out by the claimant, the defendants do not seem to have a genuine case to raise in response to the present action and may be seeking to exploit procedural technicalities to simply slowing the litigation process and hence add to the costs thereto.” Order 13 rule 7 (1) provides that all communication at a mediation session and the mediation notes and records of the Judge shall be confidential. Rule 7 (2) (a) provides further: “(a).... a record, report, settlement agreement, except where its disclosure is necessary for the purpose of implementation and enforcement, and any other documents required in the course of mediation shall be confidential” By relying on the information and documents made available by the appellants and respondent during mediation in the order striking out the appellants’ defence, the learned Judge obviously transgressed the confidentiality of the mediation proceedings. That in itself is a grave irregularity and also a threat to an already fragile mediation regime. There is already reluctance in our legal systems to 15 offer meaningful information at mediation stage of proceedings. If the confidentiality of information offered at mediation was not assured, we are likely to face more and more reluctance by litigants to approach mediation genuinely and confidently. For all that we have discussed, the order of the court below striking out the appellants' claim cannot be sustained. The appeal is allowed with the result that the defence is restored. Mediation proceedings having failed to take place on account of failure to attend by the appellants, the appellants should be made to pay the costs of the mediation proceedings. We so order. These costs should be paid before the matter proceeds to the next stage after this judgment. As regards this appeal, we order that each party bears own costs. 16 Katsala, JA dissenting My Lords, this appeal affords us the opportunity to proffer reasoned guidance to judges and all judicial officers on this now very important aspect of court business namely, the exercise of the court’s case management powers. This is necessary in view of the new procedure rules, the Courts (High Court) (Civil Procedure) Rules, (hereinafter the Civil Procedure Rules (CPR)), which came into force in October 2017. These Rules have overhauled the way the High Court deals with cases. Therefore, it is necessary that this Court must not lose sight of this fact when faced with appeals, like the present one, against orders made by a judge exercising the court’s case management powers which are, mainly, if not always, discretionary. This appeal is against the order made by the Judge refusing to set aside a judgment he entered after striking out the appellants’ defence following the respondent’s application at a rescheduled mediation session failed to take place because of the appellants’ unexplained absence. The Judge found that the appellants did not show good grounds to warrant an order setting aside the judgment and restoring the appellants’ defence, and to re-reschedule the matter for mediation. The appellants have relied heavily on a passage in the judgment of this Court in Msindo v Dairiboard Malawi Ltd MSCA Civil Appeal No. 31 of 2011 (unreported) in support of 17 their appeal. And the majority opinion of this Court in the present appeal also reflects the reasoning in that judgment. My Lords, allow me to reproduce extensively the following passage from the judgment which also includes the part relied upon by the appellants in support of their appeal: “The fifth issue concerns rules of procedure, case management and the exercise of discretion. Rules of procedure and tenets of good case management especially in the Commercial Court require that a trial court should so manage its case load in a manner that sees cases disposed of as expeditiously and fairly as possible while at the same time ensuring that prudence is exercised with respect to time and treasury. We would therefore be quick to agree with the trial court that a party should be appropriately sanctioned [our emphasis] where it appears to be proceeding counter to the immediately foregoing. The question being what are appropriate sanctions? The answer is left to the discretion of the court. But like is the case with all exercise of discretion it must be exercised judicially. A court should therefore not be allowed to, in the name of good case management and the fair and expeditious disposal of matters, proceed in a manner that occasions injustice to the parties before it, denies parties an opportunity to have their matters decided on the merits, effectively denies them access to the courts, or permits a reckless disregard to the amount of resources expended on litigation. On the contrary a court must manage its case load in a manner that enhances our people’s access to the courts, ensures that their matters are 18 dealt with fairly, expeditiously and in a manner that pays due regard to the amount of resources i.e. time and treasury expended towards litigation. Where therefore a party should, as does happen, be sanctioned for failure to comply with rules of procedure, directions, principles of good case management etc it is important firstly that the trial court sanctions the correct person|s]. secondly, and if we may borrow from criminal jurisprudence via R v Shauti 8 MLR 69 the sanction must fit the transgressor, the transgression, be fair to the litigant and be tinged with mercy.” And their Lordships continued as follows: “In the instant case the transgression was the late filing of a pre-trial check list. The appellant admitted erring. He gave a reason why he was not able to timeously file the list namely a less than smooth change of lawyers. The fault clearly lay with the lawyers. In dismissing his case the trial court punished not the lawyers who were at fault but the appellant who was not. It should also be noted that the appellant tried to make good the error within the shortest time possible. He even offered to pay costs occasioned by his failure to do the needful in time. This is a litigant who showed penance. All of the foregoing ought to have been reflected in the sanction the trial court chose to impose. We should also refer to the varied sanctions a court may impose under Order 15(2) of the Rules. It can dismiss the action, strike out the defence, make an order as to costs indeed make any other order that it deems just in the circumstances. It is clear that the sanctions range from the serious to the not so serious in 19 much the same way that the transgressions do. Meaning in our view that a not so serious transgression should attract a not so serious sanction. Similarly a serious transgression should attract an appropriately serious sanction. In the instant case the trial court in our view imposed a high end sanction. High end sanctions should, as we have stated above, be restricted to high end transgressions. A failure to lodge pre-trial check list is not one such transgression. Some sanction[s] other than a striking out of the defence, including an order for costs payable immediately or otherwise, would have been appropriate in all respects. It could even have made the striking off of the defence and the entering of a judgment on the counterclaim conditional upon the payment of costs or any other condition that the trial court deemed fit. Case management would not have been compromised and the erring appellant would have been brought back on to the straight and narrow. Clearly the sanctions imposed bore no reasonable relation to the transgression complained of.” My Lords, before I delve into a discussion of the passage I have just reproduced above, allow me to set out the relevant provisions, in so far as the present appeal is concerned, of Order 13, rule 6(1) of the CPR. It provides: “Where it is not practical to conduct a scheduled mediation session because a party fails without good cause to attend within the time appointed for the commencement of the session, the Judge may— 20 (a) dismiss the claim, where the non-complying party is a claimant, or strike out the defence, where the non- complying party is a defendant; (b) order a party to pay costs; or (c) make any other order that is deemed just.” Inasmuch as this provision may be similar to Order 15, rule 2 of the High Court (Commercial Division) Rules, 2007 (which the Msindo case was about), it is important that their differences must not be glossed over. It must be noted that Order 15 was about a pre-trial conference whose purpose was to ascertain whether the parties had complied with the directions given by a judge at a scheduling conference. Order 15, rule 2 prescribed the sanctions for a party’s failure to comply with the directions given. The sanctions were similar to those prescribed under Order 13, rule 6(1) of the CPR though the circumstances to which they apply are fundamentally different. So, in my humble opinion, their Lordships statement to the effect that the sanction for default must reflect the seriousness of the default may be correct bearing in mind the diversity of orders and/or directions that a judge may make or give at a scheduling conference. Some of the directions or orders may not be central to the progress of the matter in which case their transgression may rightfully be considered as minor and may appropriately be sanctioned by an order of costs or some other order while others may be fundamental to the progress of the matter such that their transgression may warrant the dismissal of the action or the 21 striking out of the defence. To that limited extent I would subscribe to the position taken by their Lordships in the Msindo case. However, since the nature of the subject matter (Mandatory Mediation) under Order 13 of the CPR is fundamentally different from that under Order 15 of the High Court (Commercial Division) Rules, 2007 (Pre-trial Conference), with the greatest respect, their Lordships’ prescription cannot and should not be applied wholesomely as prayed for by the appellants and as is evident from the position taken by your Lordships in the present appeal. It is clear that at a failed mediation session the judge has the power to make any or indeed all of those orders conferred on him by Order 13, rule 6(1) of the CPR. I do not agree that these powers or orders are graduated. I do not see anything in the rule suggestive of that idea. If that were the intention, then the rule would have said so. Depending on the circumstances, the judge can dismiss an action and at the same time order that the defaulting party must bear the costs of the dismissed action. The judge can, for instance, also order that an application to restore the action will only be entertained upon full payment of the costs of the dismissed action. Such an order would fall within the province of paragraph (c) of the rule. In such a scenario the judge will have made orders under all the paragraphs of rule 6(1). Thus, to assert that the rule is graduated is defiant of its practicality, intention and spirit in as far as unexplained ae failure to attend a scheduled mediation session is concerned. On the foregoing, to assert that an order dismissing or striking out the defence is an extreme measure is not correct. If a party has, without good reason, not appeared for a scheduled mediation session despite being duly served with the notice thereof, would you expect the judge to adjourn the session? Would that be an appropriate order? And on whose prayer would the judge adjourn the matter, and what would be the good ground justifying such adjournment? Or would you expect the judge to order that the absent party should pay costs for that day, and then what? Adjourn the session? And again, on whose request and for what good reason? It must be remembered that failure to appear for a court appointment per se is not a good reason for adjourning a matter. Rather, it is failure to attend for a good cause which may warrant an adjournment. In my judgment, that is where the fallacy in the view that the rule is graduated lies. Dismissal of the claim or striking out of the defence is the point of call when there is unexplained failure to attend a mediation session, more so when the other party (who is present) has moved the court to make such an order. It would be circumspect and a shame to the civil justice system in such circumstance if the court were to insist that it will adjourn the matter and order the defaulting party to pay costs for that day’s attendance - all in the name of promoting our people’s right to access justice or indeed trying to ensure that cases are determined on their 23 merits. In my view, dismissal of the action or striking out of the defence would be the only appropriate and indeed just order. And to hold that taking such a course is harsh or extreme or that such orders should be reserved for extreme violations is, as I have already stated, contrary to the practicality, intent and spirit of the rule. We also need to bear in mind that mediation is mandatory save in cases exempted under Order 13, rule 1(2). It is one of the steps that a matter must go through in the litigation process. Consequently, there is need that parties must be serious and committed to it just as they need to be with all other steps. The fact that it comes early in the litigation process does not dilute its importance nor does it relegate it to an ancillary step. It is a major step and is core to the litigation process. More so when you consider what is stated in the overriding objective of the CPR — that the court must encourage the parties to use alternative dispute resolution procedure where the court considers it appropriate, and the court must facilitate the use of such procedure. It does not mean that the judge should be more lenient with default at this stage than he/she would be with default at a later stage in the litigation process. In my judgment, it is necessary that the court must be pragmatic and firm at every stage of the process as guided by the rules — and that does not amount to harshness in any sense. To advocate for leniency when there are no good grounds for default contravenes the overriding objective of the CPR. Such view is a relic of the old and traditional approach by 24 the courts as epitomised by Lord Atkin in Evans v Bartlam [1937] AC 473 at 480 when he said: “The principle obviously is that unless and until the Court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedure.” The thread in this principle is also found in the famous dictum of Lord Bowen in Cropper v Smith (1883) 26 Ch. D. 700 at 710-711 where said: "It is a well established principle that the object of the Court is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights.... I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy...." It is almost virtually impossible to fault these dicta in view of the approach of the courts at that time and as was reflected in the now repealed Rules of the Supreme Court, 1965. In fact, Order 20, rules 5(1) and 8(1) of the Rules of the Supreme Court were couched along the dictum of Bowen LJ. Though the dictum specifically was on amendments to pleadings, this was the court’s approach to many, if not all other defaults - procedural or otherwise, hence it should not 20 be surprising that in 1937 Lord Atkin made the statement I have reproduced above. However, as I stated some years back in Mike’s Trading Group Ltd v NBS Bank Ltd Commercial Case Number 78 of 2014 (unreported), where a detailed discussion of the dictum of Lord Bowen is made: “The dictum loses a great deal of its footing when it is considered in the light of the High Court (Commercial Division) Rules, 2007. These Rules set out the fundamental criteria to which the Court must have regard when dealing with matters. These are within the overriding objective.” I do not wish to reproduce a discussion of this approach that I made in the Mike’s Trading case. My views have not changed. I still subscribe to what I said in that case because I believe it reflects the correct approach to case management in the new dispensation as enshrined in the CPR. Still manifesting the thread in the old approach to litigation, Lord Diplock in the House of Lords in Birkett v James [1978] AC 297, at page 318 stated as follows: "The power [to strike out for want of prosecution] should be exercised only where the court is satisfied either (1) that the default has been intentional and contumelious, e.g. disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or (2) (a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is 26 likely to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party." Under the old approach the emphasis was on achieving justice on the merits between the litigants in a matter. Now, the approach in England and Wales has changed following the introduction of the Civil Procedure Rules 1998. The overriding objective in the High Court (Commercial Division) Rules, 2007 which is also reproduced mutatis mutandis in the CPR was adopted from the overriding objective in the England’s Civil Procedure Rules 1998. And commenting on the above dictum by Lord Diplock and the changes introduced by the overriding objective in the Civil Procedure Rules 1998, the Court of Appeal in Arbuthnot Latham Bank Ltd and others v Trafalgar Holdings Ltd and others [1998] 2 All ER 181 Lord Woolf, MR delivering the judgment of the court said: “The gradual change to a managed system which is taking place does impose additional burdens upon the courts.... It is therefore in the interests of litigants as a stole, that the court’s time is not unnecessarily absorbed in dealing with the satellite litigation which non-compliance with the timetables laid down in the rules creates.... In Birkett v James [{1977] 2 All ER 801] the consequence to other litigants and to the courts of inordinate delay was not a consideration which was in issue. From now on it is going to be a consideration of increasing significance. Litigants and their legal advisers, must therefore recognise that any delay 27 which occurs from now on will be assessed not only from the point of view of the prejudice caused to the particular litigants whose case it is, but also in relation to the effect it can have on other litigants who are wishing to have their cases heard and the prejudice which is caused to the due administration of civil justice. The existing rules do contain time limits which are designed to achieve the disposal of litigation within a reasonable time scale. Those rules should be observed.” Therefore, similarly, under the CPR regime (with an overriding objective similar to that in the Civil Procedure Rules 1998), the consideration cannot just be about the parties before the court in a particular case but also about all the litigants whose cases are waiting to be heard by the court and the whole administration of civil justice. It is apparent to everyone that court resources are limited and that demand will always outstrip supply. Therefore, the need to allocate the resources appropriately can never be overemphasized. In fact, it is a requirement under the CPR. Order 1, rule 5(1)(e) prescribes that the court must ensure that each case is allotted an appropriate share of the court's resources while taking into account the need to allot resources to other cases in court. Now, if a litigant will continue to enjoy having his case repeatedly set down for mediation despite his unexplained failure to attend previous scheduled mediation sessions so long as such a course does not cause an injustice to his opponent, the end result will be that the court will spend more time and resources dealing 28 with his one case at the expense of the many other cases that are waiting to be scheduled for mediation and/or to be heard. It will cause delay in the disposal of cases and the rolling of the wheels of civil justice. In my judgment, that is untenable in the new dispensation brought in by the CPR. As such, anyone continuing to advocate the classical approach today will have completely missed the practical meaning and efficacy of the overriding objective and is obviously in need of a complete overhaul of their mindset. Of course, there is need for the court to strike a balance between doing justice to one litigant in a case and all the litigants in the other cases in court. Admittedly, this is not and will never be an easy task. In Charlesworth v Relay Roads Ltd (in liquidation) and others [1999] 4 All ER 397 Neuberger J, (talking about amendment of pleadings and call of evidence), said (at 401-402): "As is so often the case where a party applies to amend a pleading or to call evidence for which permission is needed, the justice of the case can be said to involve two competing factors. The first factor is that it is desirable that every point which a party reasonably wants to put forward in the proceedings is aired: a party prevented from advancing evidence and/or argument on a point (other than a hopeless one) will understandably feel that an injustice has been perpetrated on him, at least if he loses and has reason to believe that he may have won if he had been allowed to plead, call evidence on, and/or argue the point. Particularly where the other party can be compensated in costs for any 29 damage suffered as a result of a late application being granted, there is obviously a powerful case to be made out that justice indicates that the amendment should be permitted... On the other hand, even where, in purely financial terms, the other party can be said to be compensated for a late amendment or late evidence by an appropriate award of costs, it can often be unfair in terms of the strain of litigation, legitimate expectation, the efficient conduct of the case in question, and the interests of other litigants whose cases are waiting to be heard, if such an application succeeds." These sentiments were made after the judge had considered the classical approach as expressed by Millett LJ in Gale v Superdrug Stores plc [1996] 3 All ER 468 at 477-478, [1996] 1 WLR 1089 at 1098-1099 where he said: “Litigation is slow, cumbersome, beset by technicalities, and expensive. From time to time laudable attempts are made to simplify it, speed it up and make it less expensive. Such endeavours are once again in fashion. But the process is a difficult one which is often frustrated by the overriding need to ensure that justice is not sacrificed. It is easy to dispense injustice quickly and cheaply, but it is better to do justice even if it takes a little longer and costs a little more. The administration of justice is a human activity and accordingly cannot be made immune from error. When a litigant or his adviser makes a mistake, justice requires that he be allowed to put it right, even if this causes delay and 30 expense, provided that it can be done without injustice to the other party. The rules provide for misjoinder and nonjoinder of parties and for amendment of the pleadings so that mistakes in the formulation of the issues can be corrected. If the mistake is corrected early in the course of litigation, little harm may be done; the later it is corrected, the greater the delay and the amount of costs which will be wasted. If it is corrected very late, the other party may suffer irremediable prejudice .. In Clarapede& Co v Commercial Union Association (1883) 32 WR 262 at 263 Brett MR said: ‘However negligent or careless may have been the first omission, and however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs.' I do not believe that these principles can be brushed aside on the ground that they were laid down a century ago, or that they fail to recognise the exigencies of the modern civil justice system. On the contrary, I believe that they represent a fundamental assessment of the functions of a court of justice which has a universal and timeless validity." This was a very forceful pronouncement which undoubtedly strongly supports the classical approach to the whole concept of litigation and civil justice. However, it would be a serious failure on my part if I were to omit an equally if not more forceful response to this pronouncement which was proffered by the Court of Appeal of England and Wales in Worldwide Corp Ltd v GPT Ltd [1998] EWCA Civ 1894 where 31 Waller LJ (with whom Lord Bingham CJ and Peter Gibson LJ agreed) said: "We share Millett LJ's concern that justice must not be sacrificed, but we believe his view does not give sufficient regard to the fact that the courts are concerned to do justice to all litigants, and that it may be necessary to take decisions vis-a-vis one litigant who may, despite all the opportunity he or his advisers have had to plead his case properly, feel some sense of personal injustice for the sake of doing justice both to his opponent and to other litigants...." I wish to promote this reasoning with which I would humbly go along. In the new era created by the CPR the court is called upon to do justice to all the litigants and not just to the litigants in a particular case before it. Whilst it may be true that “it is easy to dispense injustice quickly and cheaply, but it is better to do justice even if it takes a little longer and costs a little more" (per Millett LJ in Gale v Superdrug Stores plc(supra)), in the modern dispensation the objective of the court is to dispense justice quickly and cheaply (as per the overriding objective). The court no longer has the luxury of time and resources as it used to have in the yonder years due to the ever-increasing number of cases being registered and the ever-dwindling supply of public resources being made available to the court. Inevitably, the court's approach to handling of cases needs to change in order to cope with these developments if it is to meet the general public’s expectations. And the CPR was introduced with this objective. 32 To wind up on my illustration on how entrenched the old approach has been and how unfitting and outdated it is in the CPR dispensation, let me refer to Ketteman v Hansel Properties Ltd [1988] I All ER 38 where counsel submitted that the authorities obliged a judge to allow an amendment no matter how late it was made nor for what reason provided the other party could be properly compensated by an award of costs. He relied on the authorities set out in The Supreme Court Practice and in particular the dictum of Brett MR in Clarapede& Co v Commercial Union Association (1883) 32 WR 262 at 263: "The rule of conduct of the court in such a case is that, however negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs ...” As it will be recalled these are the words which were quoted by Millett LJ in Gale v Superdrug Stores plc (supra) in the dictum I have reproduced above. Responding to Brett MR's decision Lord Griffiths said (at 62): "Furthermore, whatever may have been the rule of conduct a hundred years ago, today it is not the practice invariably to allow a defence which is wholly different from that pleaded to be raised by amendment at the end of the trial even on terms that an adjournment is granted and that the defendant pays all the costs thrown away.... 33 Whether an amendment should be granted is a matter for the discretion of the trial judge and he should be guided in the exercise of the discretion by his assessment of where justice lies. Many and diverse factors will bear on the exercise of this discretion. I do not think it possible to enumerate them all or wise to attempt to do so. But justice cannot always be measured in terms of money and in my view a judge is entitled to weigh in the balance the strain the litigation imposes on_ litigants, particularly if they are personal litigants rather than business corporations, the anxieties occasioned by facing new issues, the raising of false hopes, and the legitimate expectation that the trial will determine the issues one way or the other....the pressure on the courts caused by the great increase in litigation and the consequent necessity that, in the interests of the whole community, legal business should be conducted efficiently. We_ can _ no longer afford to show the same indulgence towards the negligent conduct of litigation as was perhaps possible in a more leisured age. There will be cases in which ‘cetiee will be better served by allowing the consequences of the negligence of the lawyers to fall on their own heads rather than by allowing an amendment at a very late stage of the proceedings." (Emphasis supplied) In Worldwide Corp Ltd v GPT Ltd (supra) Waller LJ concluded his judgment with the following: "We accept that at the end of the day a balance has to be struck. The court is concerned with doing justice, but justice to all litigants, and thus where a last minute amendment is 34 sought with the consequences indicated, the onus will be a heavy one on the amending party to show the strength of the new case and why justice both to him, his opponent and other litigants, requires him to be able to pursue it." This decision was made under the Rules of the Supreme Court 1965 and not the Civil Procedure Rules 1998, which only came into force in England and Wales some five months later. However, clearly the decision reflects the tenor of the Civil Procedure Rules 1998, which was no doubt in the minds of the judges, who must have been very familiar with the terms of Lord Woolf’s reports that led to the reform of the rules of procedure. This decision has been endorsed as appropriate under the Civil Procedure Rules 1998. In Savings & Investment Bank Ltd v Fincken[2003] EWCA Civ 1630 in paragraph 79 of his judgment, Rix LJ said: "As a postscript I would add that, although decided prior to the introduction of the [Civil Procedure Rules 1998] and concerned with an egregious application to change direction in the course of trial itself, the judgment of this court in . Worldwide Corporation Ltd v. GPT Limited contains a full compendium of citation of authorities as at that date which emphasises that, even before the [Civil Procedure Rules 1998], the older view that amendments should be allowed as of right if they could be compensated in costs without injustice had made way for a view which paid greater regard to all the circumstances which are now summed up in the overriding objective." 35 What conclusion can be made from the cases I have cited? The old, traditional or classical approach to litigation and concept of civil justice has over the years paved way to a new approach now codified in the CPR. The emphasis on allowing everything possible in order to do justice so long as it cannot prejudice the other party and can be compensated by way of costs has given way to a new and more pragmatic approach to litigation and concept of civil justice. Justice cannot always be measured in terms of money. In everything that is done in a matter, the court must balance between the rights and interests of the parties to the action before it and those of other litigants waiting to access justice in the courts. The court must have regard to the need to prevent any one case being conducted in a way that adversely interferes with the resolution of other disputes and wastes the court’s resources. Justice must be dispensed both expeditiously and cheaply. There are many factors that a judge must take into consideration when exercising his case management discretionary powers under the CPR in order to dispense justice. | With the advent of the CPR, it is now necessary that the court must look at justice not just in respect of the parties before it but also in respect of all the litigants with cases in court who are waiting for their day in court. This is a much broader perspective of the concept of civil justice demanded by the overriding objective of the CPR. Consequently, the test can no longer be “whether a party would be prejudiced or can be compensated by way of costs or not”. It is “what is 36 the effect of the default as between the parties themselves and on the administration of civil justice” as a whole. It must be appreciated that while the innocent party can be compensated by way of costs for the inconvenience caused by his/her opponent’s default, it would be difficult to compensate all the other litigants who have been affected by the default, including the court itself for the wastage of its time and the public for the wastage of the taxpayers’ money. We must all remember that court time is precious and there is an important public interest in its proper use. (see Securum Finance Ltd v Ashton Ltd [1999] 2 All ER (Comm) Sal). In Ashton & Another v Securum Finance Ltd [2000] EWCA Civ 197 the England and Wales Court of Appeal at paragraph 32 of the judgment said: “In the Arbuthnot Latham case [1998] 1 WLR 1426, at page 1436G, this Court spoke of "the change in culture which is already taking place will enable the courts to recognise for the future, more readily than heretofore, that a wholesale disregard of the rules is an abuse of process"; and, at page 1436H, of "the more ready recognition that wholesale failure, as such, to comply with the rules justifies an action being struck out, so long as it is just to do so". Following the Arbuthnot Lathamcase there have been numerous observations in this court which are to the same effect...” So, under the CPR a disregard of rules or orders can be an abuse of the court process. There is now demand for seriousness on the part of everyone concerned in the 37 manner of conducting court business. The parties to a proceeding are enjoined to assist the court in furthering the overriding objective. (Order 1, rule 5(3)). The use of the word 'shall' in the sub-rule is deliberate. It denotes that it is not optional on the parties to assist the court in furthering the overriding objective. The parties are under an obligation to do so. How do they help? By, among other things, by conducting their cases in accordance with the rules, doing such things as would help the court to save expense and deal with the case proportionately and expeditiously. It means that they must do everything they are required to do timely, present their cases precisely and concisely, comply without delay with any orders or directions made or given by the Court, cooperate with each other in the conduct of the proceedings, just to mention but a few. On the other hand, the court is enjoined to seek to give effect to the overriding objective whenever it exercises any power conferred on it by the CPR or interprets any written law, rules and regulations. Thus, in my opinion, it is also necessary and imperative that when dealing with appeals against decisions of judges made after the introduction of the CPR, this Court must always endeavor to promote and enhance the overriding objective. We must acknowledge that the judge now has much wider case management powers than previously and that the circumstances in which those powers will be exercised are also much wider. At no point in time should this Court, as an appellate court, under the guise of promoting access to justice or whatsoever, make 38 statements, decisions or orders whose effect will be to undermine, limit or take away the judge’s case management discretion conferred by the CPR. We must allow the judge to have the full discretion to conduct, manage, regulate and control proceedings before him or her because that is the scheme under the CPR. As an appellate court we must be slow in interfering with the exercise of discretion on case management issues. The judge handling the matter in real time is best suited to assess and judge the gravity or lightness of the situation before him than us who see the matter and the issues on review. Therefore, we need to resist the temptation of being too judgmental, fault finding, sceptical and critical of the manner in which the judge handled the situation before him. This Court should not frustrate the case management scheme under the CPR but rather promote it. Further, my Lords, it is important to note that one of the fundamental changes introduced by the CPR is the concept of procedural justice. You will notice that the overriding objective in the CPR omits the words “to enable the court? which were contained in the overriding objective in the High Court (Commercial Division) Rules, 2007 from which the CPR overriding objective was copied. I would like to think that the omission is an inadvertent typographical error because it is obvious that rules per se do not and cannot deal with proceedings, let alone justly. It is the court that deals with proceedings and not the rules of procedure. Obviously, it is the court which dispenses justice and not 39 the rules themselves. It follows therefore, that, despite the omission (whether deliberate or accidental), the rules are meant to enable the court to deal with proceedings justly. Thus, Order 1, rule 5(1) of the CPR should not be understood as saying that the overriding objective is to enable the court to do justice’ in a particular case or proceeding. That is not what it says. And even if it did, that would have to mean justice according to law as laid down in, amongst other sources, binding case law. What the rule does say is that the objective is to enable the court ‘to deal with proceedings justly’. The emphasis is thus on procedural fairness in the court’s management of cases, rather than on any concept of substantive justice. Furthermore, it is apparent — if not from the reference to ‘proceedings’ (in the plural), then at least from the terms of Order 1, rule 5(1)(e) i.e. “allocating to a proceeding an appropriate share of the Court’s resources, while taking into account the need to allocate resources to other proceedings.” I have already discussed this aspect at length in the context of the court’s need to take into account the interests of other litigants with cases in court when exercising its discretion in a particular matter. In this respect I wish to refer to a passage in Blackstone’s Guide to the Civil Procedure Rules, 2nd edn, at p 19 where the learned authors write: “That procedural fairness in one case will have to be balanced against procedural fairness in others, in particular through an appropriate allotment of the court’s resources. In making general pronouncements on the meaning and 40 application of the CPR [Civil Procedure Rules 1998], the appellate courts will have to have this exhortation to ‘managerial juggling’ and indeed all the other limbs of the overriding objective well in mind. It is certainly true that the CPR afford huge and on occasions open-ended discretions to ajudge of first instance, particularly when exercising case management powers; and it is quite likely that the Court of Appeal will be even less prepared than previously to interfere with the exercise of such discretions.” And as I have earlier stated, this is the approach this Court must take. This Court must not be overzealous to interfere with the judge’s discretion when exercising case management powers. If this Court adopts such approach, | can vouch that the number of appeals against case management orders will be significantly reduced. And it will also promote vigilance on the part of the litigants in the prosecution of their cases thereby giving efficacy to the overriding objective and the whole scheme under the CPR including the saving of expense and resources. In this respect, my Lords I note that in your faulting the Judge’s decision in the court below you are even discrediting counsel for the appellant on how he argued the application to set aside the judgment and restore the defence. I do not think that is necessary and/or desirable. Counsel decided on which points in the affidavit to take up and emphasize and which one to abandon or underplay during his submissions. He expressed his opinion on the manner his predecessor handled the matter. That was a matter within 41 his judgment as counsel. I do not see anything wrong with it. Whether his assessment was right or not is not an issue before this Court and we can do well not to express an opinion on it, let alone condemn him. In my judgment, it was clear that the explanation given by counsel Nkhono for his failure to attend the mediation session was a blatant lie. The record shows that Mr Nkhono said that he was attending another matter but would come for the session. That is why the Judge did not convene the session at the appointed time. However, Mr Nkhono never appeared. Attempts to speak to him were unsuccessful because his telephone was out of reach. Clearly, the story of him having instructed another lawyer to appear on his behalf and that that lawyer was involved in an accident was not true. The lawyer who was instructed never deponed an affidavit to that effect. There is no explanation why, being aware that the Judge was waiting, that lawyer or Mr Nkhono never relayed his predicament to the court. And no evidence, say a police report, to support that allegation was produced before the court. It is clear that this story was an afterthought concocted by Mr Nkhono with the intention of exonerating himself from the neglect and mess he had created. In this respect, I wish to commend counsel Matumba who appeared before the Judge and argued the application to set aside judgment and restore the defence, for his professional astuteness and honesty. He knew that what counsel Nkhono had deponed to in the sworn statement in support of the 42 application was a lie because it was not substantiated as I have already said. He decided not to advance the lie before the court. In the circumstances, it is a serious professional misjudgment, embarrassing and an unforgivable err for this Court to condemn him on that score. As an officer of the court, he needs to be applauded and celebrated for his professional integrity. He showed exemplary conduct which is increasingly becoming rare in the legal profession these days. I take my hat off to him and wish to encourage him and others out there to remain professionally upright and correct at all times regardless of the circumstances they are faced with. That is what professionalism is all about. With the greatest respect, I do not accept that there was need for the court below to be satisfied that counsel Nkhono had conducted the appellant’s case negligently. It was clear that Mr Nkhono had failed to attend the mediation session for no good cause. The reason he gave in his affidavit was a complete lie intended to dupe the court. I find that, both counsel Matumba and the court were entitled and perfectly correct in deciding not to rely or place any weight on the lie. Therefore, it is a serious misjudgment for this Court to fault them on that point and to reverse the Judge’s decision on the basis that he refused to accept and uphold the lie. Further, there is no evidence that the previous adjournments of the mediation session were at the instance of the court itself. I do not think it is fair to the court below for this Court to proceed on such an assumption. As an 43 appellate court we should be slow in making such assumptions especially in cases of this nature. As I have already stated hereinbefore, we need to accept and respect the special position in which a judge in the High Court is especially when it comes to case management issues. And there is need that comity of courts must prevail in the judicial system. As such we must be slow in condemning judges in the absence of facts showing that they were in err. Where counsel has conducted a case negligently, it is up to the client to take up the issue with counsel in an action for damages in Contract, Negligence or otherwise. I do not subscribe to the assertion that the court below should have been slow in accepting that Mr Nkhono had conducted the appellant’s case negligently in the absence of proof of negligence. I think we need to differentiate between a trial of a case founded on tort of negligence (i.e. where a client sues his lawyer for professional negligence) and what was before the court below. I do not think that the issue that was before the court required establishment of negligence on the part of Mr Nkhono for the court to dismiss the application to set aside the judgment and restore the defence. That need would only arise in an action where a client sues his lawyer for professional negligence. A full trial would be necessary before the lawyer can be condemned and found liable in negligence. It is important to note that the Judge did not refer to the alleged negligence in his order which to me suggests that he did not find it to be decisive of the issue 44 which was before him. Therefore, he cannot be faulted on that account. Further, on the issue of the fairness of punishing a litigant for the default of his counsel I find that the observations made by Chipeta J (as he then was) in E D Kakhome v NBS Bank [2013] MLR 53 which the appellants rely on and your Lordships appear to endorse, lack sound legal foundation. The Judge expressed serious doubts on the fairness of striking out a defence on the ground that a party has failed to attend mediation despite the notice thereof having been served of the party’s lawyers. This is what he said at page 63: « ..much as I am aware that service on one’s Lawyer is deemed to be as good as direct service on such party, leaving aside this legal fiction, this clearly looks like the classic case of sending a litigant to burn in hell for the sins ofits Lawyers. I have serious doubts about how fair such vicarious punishment can be said to be, especially when there is no explanation offered by the lower Court for neglecting all other available penalties under rule 14 in preference to it.” With the greatest respect, this proposition as I have said has no sound legal backing. In my view, it is running foul to the principles of Law of Agency. The judge accepted that a lawyer is an agent of the client but said it is a legal fiction which he could put aside. I do not agree. Law being law, you cannot choose to ignore it and still remain lawful. As courts of law, we must apply the law as it is and not as we would wish it to be. I do not find it legally acceptable for a judge to ignore 45 the settled principles of the Law of Agency in the hope of achieving what he perceives to be fair. Fairness and justice must be according to law and facts and not according to the personal whims of a judge. Lawyers are agents of their clients. And it is legally accepted that the actions of the lawyers can have serious adverse effects on the client’s cases or even lives. Where there is a breach of the agency relationship it is up to the client to seek redress against the lawyer. It is not up to the court to exercise sympathy and fail to make a lawful order for fear of victimizing the client for the default of his lawyer. I do not think that is how we can change the long-settled principles of law of Agency. In my considered view, such an approach should never get the endorsement of this Court, at least not in the present matter. My Lords, you have taken issue with the fact that the Judge in the court below found that the first appellant’s refusal to appear for mediation despite being present at court and called in was an indication of lack of seriousness. I see that you are faulting the Judge on account of the fact that the first appellant was legally represented and expected his lawyer to be present at the mediation session. And that the Judge should have taken cognaisance of the fact that most of our ordinary citizens are apprehensive and _ feel uncomfortable before the courts. My Lords, we seem to forget that the vast majority of the citizens who appear in our courts are not legally represented. They appear in person and yet are able to 46 conduct their matters to completion. It is the court’s duty to ensure that such citizens are given a fair trial. Further, it is also the court’s duty to, among other things, ensure that the parties are on an equal footing regardless of whether they are legally represented or not. (As per the overriding objective - Order 1, rule 5(1) CPR). As such, I fail to understand the rationale behind your Lordships reasoning on this point. I have serious doubts that you have fully considered the issue and the implications of what you have said. Yes, it is a citizen’s fundamental right to be represented by a legal practitioner of his choice. But looking at the laws of this country and even internationally, it is obvious that this right is not absolute. There are so many laws, rules of procedure and practice whose effect is to restrict this right. As an example, even the scheme under the Legal Aid Act is that despite every person’s right to legal representation, the Legal Aid Bureau can refuse to provide legal aid (including legal representation in a case) to a citizen. Even where legal aid has been granted the Bureau can still vary, withdraw or revoke legal aid. (See sections 5, 18, 19, 21, 22, 25,26, of the Legal Aid Act among others). In terms of court practice and procedure, we all know that adjournments are at the discretion of the court. And we also know that the courts have been very protective of this discretion to the extent that it (this discretion) cannot be interfered with even on appeal unless it is shown that its exercise was perverse. (See Minister of Finance and others v 47 Mhango and others [2011] MLR 174 (SCA)). There is no right to an adjournment. For these reasons, and many others I have not mentioned, a litigant cannot, as of right, demand that a hearing be adjourned because his lawyer is ill or unavailable. Therefore, I do not see anything wrong with the Judge’s exercise of his discretion in the management of the case before him when he proceeded to strike out the defence in view of the absence of the appellants and their lawyer. In any case I would have expected the first appellant to attend the mediation session and ask for an adjournment on the ground that his lawyer was not present despite intimating that he would come for the session. I reckon the Judge might have looked at the issue differently and would probably have exercised his discretion in the appellants’ favour. But to blatantly refuse to attend on the basis that he is legally represented was not only impudent and presumptuous but also a demonstration of utmost disrespect for the court and the entire justice system. This should not be condoned by anyone especially this Court. | I can foresee that if we are not careful on this point a lot of cases where a party is legally represented will be failing to make progress due to the lawyer’s absence. | foresee lawyers who may not be prepared for matters deciding not to attend court knowing that the court will not proceed with their matters in their absence. Our judges will be rendered powerless in such situations and will be adjourning matters for fear of being reversed on appeal if they were to do 48 otherwise. Adjournments will become automatic since we will have taken away the court’s discretion over the grant or refusal of an adjournment. This will have serious adverse effects on the justice system as a whole. I do not think that is what your Lordships would want to see happening. My Lords, I do not agree that the Judge in the court below contravened Order 13, rule 7(1) of the CPR when he made his order. I do not see anywhere in the order to suggest that he relied on confidential information. All I see is that the Judge agreed with the claimant’s submission that the defendants seemed not to have a genuine case against the claim and were employing delaying tactics. In my many years’ experience both as a legal practitioner and a Judge, I know that a judge can make such a conclusion even just on the pleadings without seeing any evidence. Further, under the CPR there is what is known as front loading —- whereby a litigant is required to attach to his statement of case or defence the material documents that he is relying on in support of his or her claim or defence. (See CPR Order 5, rule 7(3) and rule 8). Such documents are not confidential. I do not see anything wrong with a judge looking at those documents plus the pleadings and forming such a preliminary opinion. In the absence of evidence that the Judge used confidential information, I find it unsafe and unfair to condemn the Judge and impugn his decision on that basis. 49 Further, I have serious doubts on whether the view your Lordships have taken on what is confidential is correct bearing in mind the whole process of litigation and how itis conducted. Some years ago, I did express reservations over such an interpretation of a similar rule and attempted to demonstrate the difficulty it would present in the litigation process. (See Helio Courvoisier SA v Malawi Posts Corporation Commercial Case Number 16 of 2015 (unreported). In that case I held that the fact that a document is included in a mediation bundle per se does not mean that it is confidential. Practice will show that most if not all the documents put in the mediation bundle (or copies thereof) are also tendered in evidence during the trial of a matter where mediation fails. Can you imagine what would happen if the court were to say these documents are confidential and as such are not admissible because they were used during mediation? It would be difficult albeit impossible to substantiate one’s case in the trial. My view has not changed and I would hold that the documents before the Judge were not confidential. 1 am fortified on this point by the wording of the rule itself. Order 13, rule 7 of the CPR provides: “(1) All communication at a mediation session and the mediation notes and records of the Judge shall be confidential. (2) Without derogation from the generality of sub rule (1)— 50 (a) a record, report, settlement agreement, except where its disclosure is necessary for the purpose of implementation and enforcement, and any other documents required in the course of mediation shall be confidential; b) a Judge shall not— (i) disclose information given in the course of the mediation to a person who is not a party to the mediation without the consent of the parties; or (ii) be a witness in a proceeding relating to the same matter; and (c) a party to a mediation shall not rely on— (i) the record of the mediation; (ii) a statement made at the mediation session; or (iii) any information obtained during the mediation, as evidence in a proceeding or any other subsequent settlement initiative, except in relation to a proceeding brought by either party to vitiate the settlement agreement on the ground of fraud.” In my view what is confidential is: - (a) Communication or statements at a mediation session, that is, what the parties and the judge say during the mediation session. No one can refer to them outside the session. (b) The notes and records taken or made by the judge. These too cannot be referred to outside the four walls of the mediation session. ol (c) A record of what is transpiring at the mediation session (if such record, electronic or manual, is being take or compiled). (d) A report on the session (if one is made). (ec) A settlement agreement signed by the parties after reaching agreement. (f) Any documents required in the course of mediation, that is, any document requested in the course of and for purposes of the mediation. There is no evidence before us showing that the Judge in the court below referred to any of these in his order or indeed in coming up with his decision refusing to set aside the judgment. I wish your Lordships had taken time to consider the rule in greater detail other than making the conclusion you have made which, with the greatest respect, runs contrary to what the rule itself provides as being confidential and its practicality in the litigation process. On the foregoing, my Lords, it is my opinion that in view of the new dispensation introduced in October 2017 by the CPR and on the authority of the principles discussed in Mutharika and Electoral Commission v Dr. Chilima and Dr. Chakwera MSCA Constitutional Appeal Number 1 of 2020 (unreported) and Kamoto v Limbe Leaf Tobacco Company Ltd [2010] MLR 467, it cannot be said that the Judge in the court below incorrectly applied the legal principles and/or the CPR to the facts before him. Nor can it be said that his 52 exercise of his case management discretion was perverse or that his decision is clearly wrong such that it amounts to an injustice. His decision is soundly supported by the rules of procedure as codified in the CPR and the established legal principles on exercise of court’s discretion. It must be accepted that in view of the CPR and the concept of procedural justice, some cases will inevitably be determined on procedure. This will not and does not mean that there is no substantive justice. Procedural justice is part and parcel of substantive justice. (See Adoko v Jemal (1999) The Times, 8 July). As I have already stated hereinbefore, failure to comply with procedural prescriptions is an abuse of the court process. As such we should not condone abuse of the court process in the name of trying to determine cases on the merits. It is my view that procedural prescriptions are part of the merits of a case. For us to get to the merits we need to pass through the procedural requirements. We cannot ignore the procedure and hope to achieve justice on the merits. There were no good grounds justifying the appellants’ failure to attend the scheduled mediation session. The reason given was untruthful and unsound. The Judge was justified in refusing to set aside the judgment and/or restore the defence. And the court’s discretion must not be obtained through falsehood, dishonesty or fraud. 53 Therefore, I do not see any good reason why the appellants should not suffer the consequences of their unexplained failure to attend the mediation session. In my judgment, it will be an injustice if the appellants are allowed to escape the consequences of their default on the payment of the wasted costs or any other condition. Justice cannot always be measured in terms of money. (See Ketterman v Hansel Properties Ltd (supra)). And this is what the overriding objective of the CPR is seeking to entrench in our litigation process. Thus, it is important that in these modern times of the CPR we must never give the impression that money is the solution to everything and/or that justice is more accessible to the rich than the poor. Thus, it is my view that this appeal is one of those cases where the Court should be bold enough to look at a litigant in the eye and tell him "sorry you will have to bear the blunt". Indeed, it is one of those cases in which "justice will be better served by allowing the consequences of the negligence of the lawyers to fall on their own heads" (per Lord Griffiths in Ketteman v Hansel Properties Ltd (supra)) than on the head of everyone else. Whether the failure to attend the mediation session was due to negligence, tardiness, complacency, lack of seriousness, impudence, delaying tactics, or whatsoever, one thing this Court needs to do is to ensure that the effects of all that is restricted to the appellants themselves and should not spread to the respondent, the other litigants in court and the court itself. It is better to let the appellants 54 suffer an injustice, if it is injustice at all, and I believe it is not, than to do injustice to the respondent, all the other litigants whose cases are waiting to be heard and also the general public whose resources will be wasted. I would therefore, dismiss the appeal with costs. Pronounced in open Court at Lilongwe, 234 June, 2021. HONOURABLE JOSTICE E. B. TWEA SC, JA an hem SOSH POS HET SHSS ASE TES OSH ESSE ETETOSE HEHEHE OETEEHHHSOEDEOE MZIKAMANDA SC, JA HONOURABLE IC COSOSCS CESSES ETEEHHHSCHSETESSE HSH O HT SOVFAFT OVO TVVGEFOTOFOF OEE DODGODTEFDASGODODOOOS SOCHOTS ATO STASOHTHAOSCTAHSHRS OTH THA AHOTOT ODA OMT ESTER OOO DOSE SEF OBES IBFOFSRONRR8 HONOURABLE J CE L. P. CHIKOPA SC, JA HONOURABLE JUSTICE F. E. KAPANDA SC, JA HONOURABLE JUSTICE J. KATSALA JA 56