Sibande v Wipa and Another (Civil Cause 274 of 2021) [2023] MWHCCiv 38 (15 June 2023)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI MZUZU DISTRICT REGISTRY CIVIL DIVISION CIVIL CAUSE NUMBER 274 OF 2021 BEFORE HONOURABLE JUSTICE KONDOWE BETWEEN SIMEON SIBANDE ..sscisacsusecscansccnnesoaueecea teneesesevessascieunsesevenssseseves CLAIMANT AND CHAKA WIMA WIPA, cascsisnissessasisnstesdcesnsessasnavauiesscsuasensdauseonecs 18° DEFENDANT CHIPHATIRO WIP A csssscvesccsvevcssssasvesssesensesaversecresssssavsvevencens 28? DEFENDANT CORAM: HONOURABLE JUSTICE MAUREEN KONDOWE Kaliya, Counsel for the Claimant Defendants, absent. Application is for a without-notice order of default judgment Miss I. Mabaso, Senior Court Clerk JUDGMENT 1. BACKGROUND TO THIS JUDGMENT 1.1 By a specially-endorsed summons dated 23 September, 2021 the Claimant commenced this legal action against the Defendants. The Claimant who is legally represented by the Legal Aid Bureau neither dated nor signed this summons. Nor did his Counsel sign and date the summons. He also did not indicate the authority of law on the basis of which he filed it before this court and subsequently served it on the Defendants as he alleged. Attached to this summons were an undated and also unsigned statement of case and list of documents. The Claimant also filed and served an undated Sworn Statement which verified both the claim and the list of documents. 1.2 By an ex parte application for a default judgment dated 22™ July, 2022 the Claimant sought an order of default judgment against the Defendants. The application did not state its grounds. It was brought before this court pursuant to Order 12 rule 6 of the Courts (High Court) (Civil Procedure) Rules, 2017 (“the 2017 Rules”). It was supported by a sworn statement dated 11" July, 2021 which Counsel for the Claimant swore. 2. APPLICATION SUPPORTING SWORN STATEMENT ALLEGATIONS 2.1 Paragraph 4 of the Application Supporting Sworn Statement alleged that the summons was served on the Defendants on 27" October, 2021. 2.2. Paragraph 5 of the Application Supporting Sworn Statement alleged that a sworn statement that proved the service of the summons got filed with this court. 2.3 Paragraph 6 of the Application Supporting Sworn Statement alleged that the Defendants did not file and serve a response that showed their intention to defend this matter. They also allegedly did not serve any defence on the Claimant since the summons allegedly got served on them. 2.4 Paragraph 7 of the Application Supporting Sworn Statement alleged that the non- filing and non-service of the response and defence allegedly only showed that the Defendants were allegedly not interested in contesting the alleged claims of the Claimant. They allegedly have no defence to them. 2.5 Paragraph 8 of the Application Supporting Sworn Statement alleged that this is a proper matter in which a default judgment must allegedly be entered against the Defendants. 3. THE EVIDENCE 3.1 In his Application Supporting Sworn Statement dated 11" July, 2022 the Claimant produced and exhibited an uncertified and an unmarked copy of the first page only of 2 the Initial Direction that got filed with this court on 17" September, 2021 whose date of issue is not stated. He indicated in this Application Supporting Sworn Statement that he would produce and exhibit a summons marked “CKP1” and a sworn statement of service marked “CKP2”. The Claimant never produced and exhibited these documents in his Application Supporting Sworn Statement. 3.2 The Claimant also produced and exhibited to his undated and unsigned list of documents a certified copy of a letter dated 2"! October, 2008 that Traditional Authority Mzikuola [quoted verbatim] wrote. This letter is in the Tumbuka language. He also produced and exhibited a certified copy of a court order dated 22™4 January, 2... for Civil Cause No. 289 of 2013: Raphael Wipa v. Simeon Sibande which the Emfeni Third Grade Magistrate Court handed down. 4. THE LAW ON DEFAULT JUDGMENTS 4.1 UNDER THE 2017 RULES 4.1.1 Order 12 rule 6(a)(i) of the 2017 Rules states that where a defendant does not file and serve a response or a defence within 14 days after service of the summons...the claimant may file a sworn statement as a ‘proof of service’ that the summons and response in Form 2 were served on the defendant as required by Order 5 rule 7, and he may apply for a judgment in default to be entered under this Order against the defendant. 4.1.2 Order 12 rule 7(1) of the 2017 Rules states that an application for a judgment in default for ... unliquidated monetary claims including claims for recovery or delivery of possession of land in an application for possession of land may be made by filing a draft of the judgment together with a sworn statement in support of the application. 4.1.3 Order 12 rule 8(1) of the 2017 Rules states that this court may enter a judgment in default for the claimant under rule 7 without a hearing for ... unliquidated monetary claims including claims for recovery or delivery of possession of land in an application for possession of land. 4.1.4 Order 25 of the 2017 Rules provides for the powers and functions of Registrars. Section 2 of the Courts Act defines ‘Registrar’ as the Registrar of the High Court and includes an Assistant Registrar. 4.1.5 Order 25 rule 1(h) of the 2017 Rules states that subject to the direction of a Judge the Registrar may exercise the jurisdiction, powers and functions of the court to make, or refuse to make, an order on entering of a judgment in default. 3 5. OTHER LAWS OF RELEVANCE TO THIS APPLICATION 5.1 UNDER THE 1994 CONSTITUTION OF THE REPUBLIC OF MALAWI 5.1.1 Section 110(1) of the 1994 Constitution of the Republic of Malawi (“the Constitution”) states that professional and lay magistrates preside over courts that are subordinate to this court as an Act of Parliament prescribes. 5.2 UNDER THE COURTS ACT [CAP. 3:02 OF THE LAWS OF MALAWI] 5.2.1 Section 2 of the Courts Act [Cap. 3:02 of the Laws of Malawi] defines “magistrate” as a magistrate appointed under section 34 of this Act. Section 33(d) of this Act establishes third grade magistrate courts. Section 34(b) of this Act deals with the constitution of Third Grade Magistrate Courts. It states that these courts are constituted by fit and proper persons. 5.3 UNDER THE SUBORDINATE COURTS RULES 5.3.1 Order XX rule 7 of the Subordinate Courts Rules states that every judgment must be dated and it takes effect from the date on which it was given. Section 2 of the Courts Act defines “judgment” as including an order of any court. So does section 2(1) of the General Interpretation Act [Cap. 1:01 of the Laws of Malawi] which states that “judgment” in relation to a court includes an order. 5.3.2 Order XIX rule 3(3) of the Subordinate Courts Rules states that if a plaintiff does not appear the claim may be dismissed. 6. DETERMINATION OF THE APPLICATION OF THE CLAIMANT 6.1 Through his ex parte application for an order of default judgment dated 22™ July, 2022 the Claimant sought this order against the Defendants. This application called upon this court to decide whether or not this order of default judgment should be granted against the Defendants for the alleged reliefs of a declaration that the alleged exclusive rights to use, enjoy and occupy the customary land in question at Simeon Sibande Village, Traditional Authority Mzikuola, Mzimba District allegedly belong to the Claimant; a declaration that the alleged conduct of the Defendants allegedly amounts to an alleged violation of the alleged property rights of the Claimant in the alleged customary land in question; an order of permanent injunction allegedly restraining the Defendants, their agents or servants or whomsoever from allegedly developing or interfering with the alleged property rights of the Claimant including the alleged right to peacefully use, occupy and enjoy the alleged land in question; an order allegedly condemning the Defendants in alleged damages to [for] alleged 4 trespass and alleged loss of use allegedly arising from the alleged interference of the Defendants; alleged costs of these proceedings; and any other order or remedy that this court allegedly deemed fit. The Claimant did not file any skeleton arguments. 6.2 This court declines to grant to the Claimant the order of default judgment he sought against the Defendants on the ground of incurable irregularities in the manner the Claimant proceeded with these proceedings against the Defendants before this court and also on the further ground of want of jurisdiction for the following reasons: 6.2.1 This court noted that the summons that the Claimant served the Defendants was neither dated nor signed by him or his legal practitioners. This is also true of the list of documents that the Claimant filed with this court. This court cannot correct these procedural errors that the Claimant made in the prosecution of these proceedings on the ground of want of jurisdiction to do so. It is so ordered. This court takes the view that this omission on the part of the Claimant and his legal practitioners is no accidental slip but a fundamental matter that speaks to the sloppy handling of the drafting work for these procedural court documents. It is so ordered. 6.2.2 In his undated list of documents the Claimant produced and exhibited an uncertified copy of an order dated 22"4 January, 2[...] for Civil Cause No. 289 of 2013: Raphael Wipa v. Simeon Sibande through which the Emfeni Third Grade Magistrate Court dismissed an alleged claim whose particulars this court order did not state. This court looked for the lower court record for this matter but did not find it. Consequently, this court asked Counsel for the Claimant to produce any court documents from this lower court that related to the alleged pre-existing litigation that the Claimant had in his possession with a view to assisting this court to not only understand the key legal issues that got resolved by this lower court but also to finalize this judgment. Pursuant to this direction Counsel for the Claimant shared an uncertified copy of a summons dated 6" September, 2013 which the Emfeni Third Grade Magistrate Court issued under rule 4 of the Subordinate Courts (Small Claims Procedure) Rules; an uncertified copy of a notice of judgment dated 30" April, 2014 that this same lower court issued; and an uncertified copy of a court order fully legibly dated 22™ January, 2014 that this lower court delivered respectively. A perusal of these lower court documents led this court to make the following key findings as regards what allegedly transpired over this alleged same matter in this lower court. This court found that the lower court delivered its order through which it dismissed 5 Civil Cause Number 289 of 2013: Raphael Wipa v. Simeon Sibande on 22™ January, 2014. It did not state the grounds of the dismissal in the court order itself but it did so in its notice of judgment dated 30" April, 2014. In the notice of judgment dated 30" April, 2014 the lower court stated that it made the order that the Defendant did not encroach into the Plaintiff's land according to the evidence given before it. There was allegedly no proof of encroachment. It consequently dismissed the claim that the Plaintiff brought before it. It is so found. This lower court order of dismissal dated 22™ January, 2014 raises critical procedural and substantive jurisdictional matters of great importance that affect not only the outcome of the present application for an order of default judgment that the Claimant brought before this court but also the very commencement of this legal action before this court for the following reasons. This court finds that the allegation that the Claimant to the present application for an order of default judgment made to the effect that this dispute previously arose between him and the present Defendants which allegedly got resolved through the order of dismissal dated 22™ January, 2014 that the lower court handed down is not true. It is so found. This court found contrary to the allegation that the Claimant made that Civil Cause Number 289 of 2013: Raphael Wipa v. Simeon Sibande in fact arose between him and the plaintiff named Raphael Wipa. This lower court case is therefore found by this court to be res judicata as between the Claimant to the present application for an order of default judgment and the plaintiff named Raphael Wipa. It is so ordered. 6.2.3 A further close examination that this court made of the available court documents from the Emfeni Third Grade Magistrate Court showed that the Claimant to the present application for an order of default judgment was a defendant in Civil Cause Number 289 of 2013: Raphael Wipa v. Simeon Sibande that the lower court presided over and disposed of through its order of dismissal dated 22™4 January, 2014. The lower court addressed its order of dismissal dated 22"4 January, 2014 to the Claimant to the present application for an order of default judgment only in his then legal capacity of a defendant to that court action. It never addressed the order to Raphael Wipa in whose absence it granted it. The order of dismissal dated 22™4 January, 2014 should have been not only also addressed to the plaintiff named Raphael Wipa but actually served on him with proof of its service on him furnished to the lower court. It is so ordered. The Defendants to the present application for an order of default judgment were never parties to the lower court case registered at 6 Emfeni Third Grade Magistrate Court as Civil Cause Number 289 of 2013: Raphael Wipa v. Simeon Sibande. This court considers that given its findings over what transpired over this matter in the lower court rather than proceeding to commence the present incurably irregular proceedings before this court against different Defendants in reliance on a court order that had nothing to do with them the Claimant to the present application for an order of default judgment should have initially engaged the Customary Land Management Committee that has jurisdiction over the customary land in dispute at Group Village Headman level that section 5(1) of the Customary Land Act, 2016 established at first instance. It is so ordered. More so given the finding of this court that the Defendants that the Claimant dragged to and before this court which is not a court of first instance for customary land disputes but actually an appellate court pursuant to section 49(5) of the Customary Land Act, 2016 read together with regulation 76 of the Customary Land Regulations, 2018 were never parties to the lower court case registered at Emfeni Third Grade Magistrate Court as Civil Cause Number 289 of 2013: Raphael Wipa v. Simeon Sibande. It is so ordered. An application for an order of a default judgment presupposes that the dispute over which it is sought is jurisdictionally and competently within the judicial mandate of the court before which the legal action got commenced at first instance. It is so ordered. 6.3 This court has dismissed the application for an order of default judgment that the Claimant brought before this court against the Defendants for the reasons stated in this judgment. It is so ordered. Having found that the Claimant most irregularly commenced the present legal action against the present Defendants in this appellate court without first having resorted to and exhaustively utilized the customary land dispute resolution mechanisms that the Customary Land Act, 2016 established this court also dismisses this legal action on that ground. It is so ordered. The judgment dated 2"! October, 2008 that Inkosi Mzikubola allegedly handed down does not come to the aid of the Claimant for the reason that it is a judgment that says nothing about the current Defendants to the present legal action or the plaintiff named Raphael Wipa who previously commenced Civil Cause Number 289 of 2013: Raphael Wipa v. Simeon Sibande against him. It is so ordered. Section 26(1) of the Courts Act states that in addition to the powers conferred upon this court by this Act or any other Act this court has general supervisory and revisionary jurisdiction over all subordinate 7 courts and may in particular but without prejudice to the generality of the foregoing provision if it appears desirable in the interests of justice of its own motion at any stage in any matter or proceeding in any subordinate court call for the record and give to such subordinate court such directions as to the further conduct of the matter as justice may require. This court notes that although section 26(1) of the Courts Act gives this court this general supervisory and revisionary jurisdiction over the Emfeni Third Grade Magistrate Court this court cannot exercise this jurisdiction on the sole basis of the allegation the Claimant made in paragraph 8 of his undated statement of case to the effect that an attempt to execute the order of dismissal dated 22"¢ January, 2014 from Emfeni Third Grade Magistrate Court allegedly got frustrated by the alleged refusal of that lower court to do so on the alleged ground that it never determined the ownership or rights to use over the customary land in dispute. In the absence of the court record from this lower court and also due to the finding of this court that the present Defendants were not parties to that lower court litigation this court is unable to set aside this alleged order of refusal to execute the order of dismissal dated 22" January, 2014 on the basis of section 11(b) of the Courts Act which is clear that without prejudice to any jurisdiction conferred on this court by any other written law this court has all the civil jurisdiction and powers which belonged to and were exercised by the Emfeni Third Grade Magistrate Court. It is so ordered. Section 30 of the Courts Act states that costs of court proceedings are in the discretion of a court. Order 31 rule I(a)(b) and (c) of the 2017 Rules amplifies this issue. Order 31 rule 3(1)(a) of the 2017 Rules states that this court has discretion as regards whether or not costs must be paid by one party to another. Order 31 rule 3(1)(b) of the 2017 Rules states that this court has discretion to decide the amount of any payable costs. Order 31 rule 3(1)(c) of the 2017 Rules states that this court has discretion to decide when costs must be paid. Order 31 rule 3(2) of the 2017 Rules states that where this court decides that costs must be paid, an unsuccessful party is ordered to pay the costs of a successful party. This court notes that the Claimant was legally- aided for him to commence this legal action and bring the application for an order of default judgment before this court. This court exercises its discretion on costs to make no order for costs. It is so ordered. 7. THE RIGHT OF THE CLAIMANT TO APPEAL AGAINST THIS JUDGMENT 7.1 The Claimant has a right to appeal against this judgment pursuant to section 21 of the Supreme Court of Appeal Act [Cap. 3:01 of the Laws of Malawi]. This provision states that an appeal lies to the Supreme Court of Appeal from any judgment of a High Court or Judge in any civil cause or matter. This court confirms that the Claimant is at liberty to appeal against this judgment before a full Bench of the Supreme Court of Appeal in compliance with section 23(1)(b) of this Act. It is so ordered. Section 23(1)(b) of the Supreme Court of Appeal Act states that any person who desires to appeal from this court to this higher Court must in such manner as is prescribed by the rules of court give notice to the Registrar of the High Court of the intention to appeal within 6 weeks of the delivery of the judgment that is to be appealed against. This court grants the Claimant leave to appeal against this judgment to the Supreme Court of Appeal. It is so ordered. Delivered at Mzuzu this ....... (5 beceeeeeees day of....... wd VE occcceces 2023 M. KONDOWE JUDGE