Nomanda and 20 Others v City Council of Blantyre (Civil Cause 30 of 2021) [2024] MWHC 31 (25 January 2024)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL DIVISION CIVIL CAUSE NO. 30 OF 2021 (Before Honourable Justice Mambulasa) BETWEEN: SAMSON NOMANDA & 20 Others ......cessssceeseeeseeseeseceeeeaees CLAIMANTS -AND- CITY COUNCIL OF BLANTYRE..........:ccsseseeseceseeeeeeeseeees DEFENDANT CORAM: HON. JUSTICE MANDALA MAMBULASA Mr. Chancy Gondwe, Advocate for the Claimants Ms. Tina-Fiona Mloza, Advocate for the Defendant Mr. Obet Chitatu, Court Clerk ORDER MAMBULASA, J [1] [2] [3] [4] Introduction On 28" January, 2021 the Claimants commenced the present proceeding by way of Summons claiming: (a) a declaration that the Claimants acquired land at Mibawa Bus Terminal by prescription, (b) a declaration that the Defendant’s action in removing the Claimants from Mibawa Bus Terminal is a violation of their nght to engage in economic activities, (c) a permanent order of injunction restraining the Defendant from demolishing the Claimants’ shops, removing their containers and closing their businesses at Mibawa Bus Terminal, (d) damages for loss of business in the event of any demolition, removal and closure of containers belonging to the Claimants, and (e) costs of the action. On 29" January, 2021 the Claimants applied for a without notice order of interlocutory injunction to restrain the Defendant from demolishing the Claimants’ shops, removing their containers and closing their businesses at Mibawa Bus Terminal. This is in the City of Blantyre. Upon considering the application and the relevant law, the Claimants were granted the order that they sought from the Court. The Court granted the said order on two terms, namely, that the Claimants shall then file with the Court and serve on the Defendant a with-notice application for its continuation or discharge, as the case may be, within 7 days from 29" January, 2021 failing which the order would automatically lapse and further, that the with-notice application shall be heard on 18" February, 2021 at 08:30 a.m. [5] [6] [7] [8] [9] The Claimants did file a with-notice application with the Court and served it on the Defendant within 7 days as ordered by the Court. The Defendant opposed the application for the continuation of the interlocutory order of injunction as it intended to roll out a project that would result in the building of a modern terminal at Mibawa. The project was being handled by the Public Private Partnership Commission (PPPC). Meanwhile, the Defendant filed its Defence and Counterclaim with the Court on 23" February, 2021. There is no evidence on the court file that the Defence and Counterclaim was served on the Claimants as is required by law.! On 18" February, 2021 when the with-notice application was called for hearing, it was postponed to 26" February, 2021 at the instance of the Defendant. On 26" February, 2021 the Court extended the without notice interlocutory order of injunction that it granted to the Claimants on 29" January, 2021 to 30" April, 2021. That was to give the Claimants sufficient time to remove their containers and any structures and effects that they had erected at Mibawa Bus Terminal without any inconveniences. The Court further ordered that if the Claimants would not have done so on their own accord, then, the Defendant would be at liberty to demolish and remove the containers, structures and all effects from the land at Mibawa in readiness for the commencement of construction works of modern parking facilities by a certain Kenyan investor. ' Order 5, rule 8 of the Courts (High Court) (Civil Procedure) Rules, 2017. [10] [11] [12] [13] Since 26" February, 2021 until today, 25" January, 2024 some thirty-five months down the line, the Claimants have not taken any steps to prosecute the matter. It is in view of the foregoing that the Defendant has taken out a without notice application under Order 12, rule 54 of the Courts (High Court) (Civil Procedure) Rules, 2017 to dismiss the proceeding for want of prosecution. Issue for Determination The only issue falling for determination before this Court is whether or not this Court should dismiss this proceeding for want of prosecution as prayed for by the Defendant? The Law The law on dismissal of a proceeding for want of prosecution is primarily governed by Order 12, rule 54 of the Courts (High Court) (Civil Procedure) Rules, 2017. It provides as follows: (1) A defendant in a proceeding may apply to the Court for an order dismissing the proceeding for want of prosecution where the claimant is required to take a step in the proceeding under these Rules or to comply with an order of the Court, not later than the end of the period specified under these Rules or the order and he does not do what is required before the end of the period. (2) The Court may dismiss the proceeding or make any other order it considers appropriate. [14] In James Masumbu (On his own behalf and on behalf of the vendors of Kachere Market) -vs- Blantyre City CounciF the Court dismissed the matter for want of prosecution for failure on the part of the Claimant to take steps towards prosecuting the proceeding for almost nine months. It was held that failure to prosecute a matter for nine months was inordinate and inexcusable delay and that there was a substantial risk that a fair trial of the issues was no longer going to be possible and that therefore it was an abuse of court process and it was dismissed with costs to the Defendant. [15] The Court is enjoined to give effect to the overriding objective of the Courts (High Court) (Civil Procedure) Rules, 2017 whenever it exercises any power conferred on it by these Rules or whenever it interprets any written law, rules and regulations. Analysis and application of the law to the facts [16] In this matter, it is the Defendant’s contention that the conduct of the Claimants in having the case unmoved for almost thirty-five months is an inordinate and inexcusable delay and therefore an abuse of the court process. It is the further contention of the Defendant that for the Claimants to commence and continue litigation with no intent to bring it to a conclusion also amounts to abuse of court process. Finally, the Defendant also contended that it has a high turnover of staff and potential witnesses may not be available when the proceeding resumes which may result in injustice to it. Civil Cause No. 256 of 2017 (High Court of Malawi) (Principal Registry) (Civil Division) (Unreported). [17] The Court has meticulously perused the Court file and confirms that since the with-notice hearing of the application for the interlocutory order of injunction was had, on 26" February, 2021 until now, the Claimants have not taken any further steps to prosecute this matter and have indeed shown no interest of doing so anytime soon. [18] First, the Claimants were served with a Defence and a Counterclaim. They were supposed to file a Defence to the Counterclaim within 28 days from the date that they were served with a Defence and Counterclaim,* which they never did. It possibly meant that they did not have any defence to the counterclaim. [19] Second, in this matter, statement of case was deemed to have been closed 7 days after the Defendant had filed its Defence and Counterclaim with the Court on 23" February, 2021 and served it on the Claimants.* Then, within 7 days from the time the statement of case was deemed to be closed, both parties were required to prepare a statement in Form 15 and provide a copy to every other party to the mediation session and to the Judge. While the responsibility to prepare a statement in Form 15 is placed on both parties, the Claimants were supposed to lead the way to demonstrate their desire to prosecute the matter and bring it to finality. This also they did not do. 3 Order 5, rule 7 (2) (b) of the Courts (High Court) (Civil Procedure) Rules, 2017. * Order 9 of the Courts (High Court) (Civil Procedure) Rules, 2017. > Order 13, rule 3 (1) of the Courts (High Court) (Civil Procedure) Rules, 2017. [20] Third, as it has been noted above, the Claimants did not file with the Court and serve on the Defendant their Defence to the Defendant’s Counterclaim. A counterclaim is at law an independent or separate claim.° It was open to the Defendant to apply for a judgment in default on its Counterclaim against the Claimants and enforce it, which it never did. In other words, the Defendant did not also prosecute its Counterclaim in this matter in equal measure. [21] Public policy requires that litigation must come to an end. There should be a point where court proceedings should come to a close,’ more so now, when the court system is heavily inundated with cases. [22] The failure on the part of the Claimants to prosecute this matter further for a period of thirty-five months is so prolonged and an inordinate and inexcusable delay. There is indeed a substantial risk that a fair trial of the issues will not be had. This is clearly an abuse of court’s process. Public interest in the administration of justice demands that the proceeding should not be allowed to continue in these kind of circumstances. Even the overriding objective of the Courts (High Court) (Civil Procedure) Rules, 2017 includes ensuring that a proceeding is dealt with expeditiously and fairly and would not be offended if this proceeding was dismissed for want of prosecution. [23] Similarly, the failure on the part of the Defendant to further prosecute its Counterclaim for a period of third-five months is so prolonged and an inordinate and inexcusable delay. There is also substantial risk that a fair trial of the issues will not be had. That also, is clearly an abuse of court’s process. ° See for instance, Amon -vs- Bobbert (1889) 22 QBD 543 at 548. 7 Alex Kachingwe -vs- Electricity Supply Corporation of Malawi, Personal Injury Cause No. 691 of 2014 (High Court of Malawi) (Principal Registry) (Unreported). 7 [24] Likewise, public interest in the administration of justice demands that the Defendant’s Counterclaim should not be allowed to continue. The overriding objective of the Courts (High Court) (Civil Procedure) Rules, 2017 will be upheld if the Defendant’s Counterclaim will not be allowed to continue beyond today. [25] Consequently, this Court dismisses the Claimants’ proceeding for want of prosecution and does the same for the Defendant’s proceeding. Costs are awarded in the discretion of the Court. The general principle 1s that the unsuccessful party pays the costs of the successful party. In this matter, the claims for both parties have been dismissed for want of prosecution. Each party will therefore bear its own costs. [26] It should be mentioned that it was open to this Court to strike out the proceedings without notice, from the time that it became apparent that the parties had not taken any further steps in the matter for a period of 12 months.® The Court however was not able to pick this up in time to enable it invoke Order 12, rule 56 of the Courts (High Court) (Civil Procedure) Rules, 2017. [27] Made in Chambers this 25" day of January, 2024 at Blantyre, Malawi. iL lasz M. D. MAMBULASA JUDGE 8 See for instance, Francis Symon Mabedi -vs- NBS Bank Limited, Land Cause No. 124 of 2016 (High Court of Malawi) (Principal Registry) (Unreported).