R I Hamdani Transport v National Finance Company LTD (Civil Cause 2118 of 2001) [2002] MWHC 83 (2 October 2002)

e IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY (Civil Cause Number 2118 of 2001) BETWEEN R I HAMDANI TRANSPORT PLAINTIFF AND NATIONAL FINANCE COMPANY LIMITED DEFENDANT CORAM D F MWAUNGULU (JUDGE) legal practitioner, Salimu, appellant/defendant Mhango, legal practitioner, for the respondent/plaintiff Machila, the official court interpreter for the Mwaungulu, J ORDER rule raised The defendant, National Finance Company Limited, appeals against the Registrar’s order of 18t March 2002. by summons for judgement on The defendant applied admission under Order 27, of the Rules of the Supreme Court. The Registrar, despite other grounds the plaintiff the defendant’s application because the defendant’s affidavit of the Rules of the Supreme offended Order 41, Court. The Registrar, having concluded that way, never considered whether the letter the basis of the application for judgement on admission was one where the court would, in its discretion, order a judgement on admission. On this latter aspect, counsel, particularly Mr Mhango, appearing application, dismissed against rule the i o for the plaintiff, had much to say before the Registrar and on appeal to the judge. on. never decided appeal the one Registrar of which, because of This Court, in my judgement, has to determine two the matters in this approach taken, The Registrar thought that an application for judgement on admission is final because it results in the final disposal of the matter between the parties. In that case, under Order 41, rule 5 (1) of the Rules of the Supreme Court, hearsay is inadmissible in affidavit evidence. In this appeal, the Court has to decide whether the Registrar was right. The Registrar relied on the English Court of Appeal decision of Rossage v of the Rossage [1961] 1 W L R 249. Order 41, rule 5 Rules of the Supreme Court, and it has not changed much since Rossage v Rossage, reads: (1) “Subject to - (a) Order 41, rule 2(2) and 4 (2); (b) Order 86, rule 2(1); (c) Order 113, rule 3; (d) Paragraph (2) of this rule, and (e) Any Order made under Order 38, rule 3, An affidavit may contain only such facts as the deponent is able of his own knowledge to prove.” Order 41, rule 5 provides: (2) of the Rules of the Supreme Court interlocutory “An affidavit sworn for the purpose of being used contain in the statements of information sources and grounds thereof” proceedings or may belief with In Rossage v Rossage, the father and a clerk to the father’s solicitors, on a father’s application to suspend a mother’s access to a child not in her custody, introduced in the affidavits hearsay evidence. The Court of Appeal allowed the mother’s appeal to reject the affidavits in support of the application. Hodson, Ormerod and Willmer, LJJ followed the The 269. remarks of Cotton, L. J., in Gilbert v Endean (1878) 9 Ch D 259, demonstrates, underscores the nature and quality of evidence necessary for final determination of rights between the parties. The rule only allows evidence on information and belief for interlocutory applications. Lord Justice Cotton said: Cotton rule, L. J., as “...for the purpose of this rule those applications only are considered interlocutory which do not decide the rights of parties, but are made for the purpose of keeping things in status quo till the rights the purpose of obtaining some direction of the court as to how the cause is to be conducted, as to what is to be done in the progress of the cause for the purpose of enabling the court ultimately to decide upon the rights of the parties.” can be decided, for or Lord Justice Cotton continued: in are the form, therefore interlocutory in my opinion “Now many of the cases which are brought before the court on motions and on petitions, and which are not interlocutory within the meaning of that rule as regards evidence. They are to decide the rights of the parties, and whatever the form may be in which such questions are brought before the evidence must be court, regulated by the ordinary rules, and must be such as would be admissible at the hearing of the such cause. applications, if an affidavit on information and belief is made, the other side is not called upon to answer it under the peril of its being said to him, You have in fact admitted this by not denying it, and the admission.” where in the But I must add this: strictly not evidence court admissible, not being that upon which the court can properly act, if the person against whom it is read does not object, but treats it as admissible, then, before the Court of appeal, in my judgment, court may act therefore, therefore opinion, below being upon the the my on In he is not at liberty to complain of the order on the ground that the evidence was not admissible. But in such a case the court does not act on the statement as being evidence properly admissible, but because the party has by the course which he adopted waived proof of on information and belief. I have said this because I think that the matter is one of very considerable importance, and that the habit of introducing into applications parties evidence on information and belief has done great injury in many ways in the Chancery Division.” decide stated rights facts the the of to For applications whose purpose is to finally determine proof requires compliance with rights between parties, ordinary rules of evidence. In that regard, Lord Justice Cotton’s test is simple and, in my judgment, cannot presage the difficulties in the Court of Appeal Lord Justice Denning mentions in Saulter Rex & Co v _Ghosh, [1971] 2 All E R 865, 866: of the the test that nature to what is In Standard Discount Co v a note in the Supreme Court Practice “There is 4, from which it r 1979 under RSC Ord 59, appears that different tests have been stated from final and what is time to time as interlocutory. La Grange and Salaman v Warner, Lord Esher MR said the was application to the court and not the nature of the But in order which the court eventually made. Bozson v Altrincham Urban District Council, the court said that the test was the nature of the order as made. Lord Alverstone CJ said that the ‘Does the judgment or order, as made, test is: finally dispose of the right of the parties?’ Lord Alverstone CJ was right in logic but Lord Esher MR was right in experience. Lord Esher MR’s test has For applied instance, an appeal from a judgment under RSC Ord 14 (even apart from the new rule) has always of been regarded as interlocutory and notice practice. always been in 14 days. An be lodged within appeal had to appeal from an order striking out an action as being frivolous or vexatious, or as disclosing no reasonable cause of action, or dismissing it for want of prosecution every such order is regarded as interlocutory: see Hunt v Allied Bakeries Ltd. So I would apply Lord Esher MR’s test to an order I look to the application for refusing a new trial. a new trial and not to the order made. If the application for a new trial were granted, it would is clearly be interlocutory. It was so held in an refused, it unreported Finance (Commercial) Ltd v Robert Dick, and we should follow it today.” is interlocutory. case, So equally when it Anglo-Auto its The test that Lord action, course. Cotton’s suggests which must follow interlocutory applications are within main proceedings. They are not the main true character of interlocutory proceedings is that if successful, and only if successful, they will have the effect of concluding They need not have that effect if the rights of the parties. is because, if unsuccessful, the they are unsuccessful. It other continue will proceedings main proceedings, within the main proceedings, interlocutory. An application being it successful cannot be conclusive or final. The proceedings This must surely go on if the application is unsuccessful. test captures amendment, interim relief, withdrawals, etc. Final applications determine rights of parties one way or the In other whether the application is accepted or rejected. this respect Lord Justice Denning’s suggestion to look at previous decision is tentative in an area requiring certainty, obscures a proper enquiry into principles underpinning prior decisions and offers unclear solutions to future and novel situations. depends finality makes whose only that on judgments Lord Justice Denning suggested summary judgment are admissions and interlocutory. These applications are interlocutory on the principle just explained. Counsel referred the Registrar to the Court of Appeal decision in Technistudy Ltd v Kelland applications on Technistudy [1976] 1 WLR 1042, not on this principle though. On this point the admission Registrar’s for not applications judgement on admission is interlocutory. on application v conclusion judgement An Kelland that interlocutory. incongruous are to is Problems or injustices arising from accepting hearsay evidence in interlocutory applications are balanced by a rule of disclosure of the source of information and reasons. This allows the court, where there are reasonable objections, to call for such evidence if necessary. The safeguard ensures interlocutory applications are not blown up to hearings where rights are determined without compliance with rules of evidence. is the Salimu admission. surrounding the an on defendant right letter and admission the entitling Mr The second matter, not considered by the Registrar, is documents whether a to constitute judgement that, notwithstanding the decision on the affidavit evidence, the Registrar should have considered the matter on the merits. This has always been the practice at nius prius. A decision at first instances could be reversed on appeal. A court at first instances must in the order or judgement cover all matters raised during the hearing. The Registrar, aware of this possibility, should have decided the other question application: whether there was an necessitated by admission the this matter at length. Counsel, before the Registrar on Registrar and this cited many authorities, some persuasive and others binding on this Court on principles around judgements on admissions. addressed counsel Court, letter. Both the the in Mr. Mhango referred to Lord Justice Green’s statement in Ash v Hutchinson& Co. Publishers [1936] Ch 48, adopted in this Court by Skinner, C. J., in Barclays Bank DCO v Karim [1971-72] 6 AL R (M) 30: A plaintiff who relies a “ substantial part of his case upon admissions, in proof the for of the defence, should show that the matters in question are clearly admitted; he is not entitled to ask the court to read meanings into his pleadings clearly which upon fair appear in order to the defendant with an admission.” construction not fix do a fact. This Where the party to an action through pleadings or otherwise clearly admits existence of some aspect, it is good law based on sound public policy that the adverse party Rule 27 allows a party to benefits from such a confession. obtain judgment by motion or summons where the other party admits either in the pleadings or otherwise to the existence of beneficial and coercive power should be invoked where clearly there is an admission. For this reason Banda J., in Produce Marketing Supplies Ltd and Globe Electrical and Agriculture Company v Packaging Industries (MW) Ltd (1984 - 86) 11 M. L. R. 104 insisted that such admissions should be unequivocal. The party on whose admission the motion for judgment is sought must intend, tacitly, implicitly or explicitly to admit the aspect. The inference of admission depends, in my judgment, on the clarity in the pleadings and the admission itself, written or otherwise, made by an party. a judgement on admission truncates the application of the court may party’s examine the admission. trial context a normal way, circumstances right the around extent that and the the To in to the the and from Where, context the pleadings, circumstances, the admission is clear, it is sound policy, to the parties and administration of justice, unless there is something to undermine the exercise of the discretion, to have the party obtain judgment under this rule. Where that clarity is wanting or the context or circumstances sully the admission, the court would not be doing justice to the parties or administration of justice to allow judgment on this rule without testing the evidence on which the action is based. This court was reluctant in Venetian Blind Specialist Ltd v Bridge Shipping Malawi Ltd (1984 — 86), 11 MLR 233 to accept admissions made in the context and background of persistent denials. Equally, courts are unlikely to give the course of judgement where the admission was in negotiations or in furtherance of an out of court settlement (Construction & Development Ltd v Munyenyembe (1987) 12 M L R 292. Moreover, a judgement on admission is within the discretion of a judge. The discretion must be exercised judicially. The judge may, for good reasons, refuse to exercise the discretion. on, the and to The letter relied the of content, scarcely context amounts plaintiff was using on the in an circumstances case, a admission warranting the exercise of the discretion for the At the time of the letter, judgement on admission. defendant seized a the car contract because the plaintiff stalled on some instalments. The plaintiff obtained an injunction from this court. There is a The about monies plaintiff wanted the car back to finish the contract. The offer was to appease the defendant and continue the payments for the car. The letter was in the spirit of these negotiations. letter The court cannot fairly use this to prejudice the plaintiff’s plaintiff's pleading, is action which, from the premised more substantially on the effect of the agreement between the parties. legitimate actually dispute paid. If, as the plaintiff contends, this was a hire purchase agreement, the defendant’s right to seize the car depends on the amount actually paid. That amount is in dispute. The defendant’s right to seize the vehicle is different if this was, as the defendant contends, a lease an agreement for lease. To these questions, the letters, even if unequivocal, are not the answer, if the answer, not full answer. These matters cannot properly be disposed of on a motion or summons like this one. I am relying on the remarks of Jessel, M. R., in Mellor v Sidebottom, (1877) 5Ch. D 342, 344: the “We think that this is a case in which the Judge has a discretion, with which we ought not to interfere. These applications come on upon an ordinary motion day, very inconvenient if parties were entitled as a matter of right to interfere with the ordinary motion by bringing on in this form questions which might be better decided on demurrer or at the trial: and we it would and be to consider that the judge has a discretion as whether a case involves questions which cannot conveniently be disposed of on a motion of this kind.” the Registrar therefore, Although, the discretion, on the evidence and arguments here and before is the proper exercise of the discretion to the Registrar, it refuse I therefore dismiss the appeal with costs. for judgement on application admission. exercised never the Made in Chambers this 27¢ Day Of October 2002