Bazaar v Girach (MSCA Civil Appeal 7 of 1987) [1988] MWSC 2 (8 August 1988)

IN ORE MALAWI SUPREME COURT OF APPEAL Av BLANTYRE : M. S. C. A. CIVIL, APPRAL NO.7 OF 1937 (Being Civil Cause No. 245 of 1985) BE’ TWE FN 2 O. K. BAZAAR. ..ceccsccccccecdcccescccccece e sAPPELLANT - ana - M. R. GERACH... ccc ccc ee ccc ccc eee escccccess o RESPONDENT Before: The Honourable Mr. Justice Randa, J. A. The Honourable Mr. Justice Mtegha, J. A. The Honourable Mr. Justice Kalaile, dJ. A. Maulidi, Counsel for the appellant Latiff, Counsel for the respondent Phiri/Gausi, Court Reporters Sa@dyaxale, Law Clerk JUDGMEN? Mtegha, J. The appellant in this case is appealing against a ruling made by IMbalame, J. on 9th December 1985 in which he refused to entertain an appeal from the Registrar because the appeal was filed out of time. Perhaps it would be prudent if I briefly state the facts of the case. Fos. “ the appellant, who was the plaintiff.in the lower court, applied to the Registrar for judgment on admissions. ‘the learned Registrar dismissed the application and the apvellant abpealed to a Judge in chambers. flee When both counsel had addressed the court, counsel - for the respondent pointed out that the appeal cannot he % entertained hecause the appeal was filed out of time. ‘The learnec Judge found that the learned Registrar's ruling - x was mace on 15th Seotember, 1985, and notice to appeal was filed with che court on 22nd September ot and according to 0.58/1/3 time of the appeal had elapsed It has been subnitted dy Hr. Maulidi that the Judge was wrong to hold that time, within which to apveal, had elapsec because ©.5%/1/2 was not complied witn. He says 2/foeee that his appeal was within time because, taking into account 0.3/2/5 of the Rules of Supreme Court, Saturdays and Sundays are excluded for the purpose of computing time. In this case, 15th September 1986 was a Tuesday, 20th and 2lst September was a Saturday and a Sunday, respectively, and 22nd was a Monday when he filed in notice of his appeal. He was therefore within the time of 5 days. Again under the provision of Rule 3 of High Court (Exercise of Jurisdiction of Registrar) Rules 1975, period required for an appeal to the Registrar's ruling to a Judge in Chambers is 7 days; therefore he was within time. Mr. Gatiff, for the respondent, does not agree with the opinion of the court below. He says, however, that the rule cited above is the correct one and entirely agrees with Mr. Maulidi's submission. We are also of the same view. ‘The lower court entirely ignored the provisions which have been cited above. We therefore allow the appeal and set aside the Judge's order. We further order that the case be remitted back to the Judge to hear the substantive appeal. On the guestion of costs, we set aside the costs awarded to respondent in the lower court and order that each party will pay its own costs on this appeal. DELIVERED at Blantyre on this 8th day of August, 1988. Le Signed VC OVE De BANDA, J. A. Lis ; a. 2 ome LIPA A Te BE 9, MPTEGHA, J. A. Osan Signed fo KALATLE, J. A.