Chapinga T/A Matechanga Motel and Enterprises v National Bank of Malawi Limited (MSCA Civil Appeal 29 of 2018) [2022] MWSC 19 (26 April 2022)

IN THE MALAWI SUPREME COURT OF APPEAL MSCA CIVIL APPEAL CASE NUMBER 29 OF 2018 [BEING HIGH COURT OF MALAWI, COMMERCIAL DIVISION BLANTYRE REGISTRY, COMMERCIAL CASE NUMBER 314 OF 2016] BETWEEN: < STELLA CHAPINGA T/A MATECHANGA MOTEL & ENTERPRISES < AND NATIONAL BANK OF MALAWI LTD CORAM: JUDGMENT BACKGROUND This matter was originally between the respondent and one Adam H. Osman. The latter had successfully tendered for the purchase of a motor vehicle which turned out to have been offered as security for a financial facility extended by the respondent to the appellant. When the appellant could not meet her obligations under the facility the respondent advertised the motor vehicle for sale. The abovementioned Osman then successfully tendered to buy the motor vehicle at the price of K20,500,000.00. The purchase price was actually paid to the respondent. The motor vehicle was however not delivered to Osman. It turned out that the appellant, in between the tender sale and expected delivery of the truck to Osman successfully redeemed the same from the jaws of vote lender. of K45, 000,000.00. Not # being best ines with, the tue On February 1, 2018 the appellant’s lawyers were served with a notice from the respondent indicating its intention to cross-examine the appellant. On February 5‘, 2018 the appellant’s lawyers wrote the court below informing it and the respondent that they would not be available on the 6, They would be attending to another matter before Hon Manda, J. of the Commercial Court in Lilongwe. And thus appeared before the court below on 6 February on behalf of the appellant counsel other than Mr. Mpaka. He was seeking an adjournment. He claimed that Counsel actually seized of the matter[the above-mentioned Mr. Mpaka] was not available. He was, as stated in the letter of February 5m abovementioned, appearing before Honourable Manda, J. in Lilongwe. The respondent opposed the adjournment. It was of the view that the appellant and her counsels were abusing the court process. — needless adjournments for no sound reason or at all. The court below sided with the respondent. appellant's conduct indeed amounted to an abuse of prod court. THE GROUNDS OF APPEAL Four grounds of appeal erred in law and fact b THE ARGUMENTS The Appellant She contended that the court below wrongly exercised its discretion when it declined to adjourn the matter on February 6, 1918. In her opinion there was good enough reasons for granting the adjournment. Her counsel was attending to a senior judge in Lilongwe. More than that the hearing would have been aborted anyway seeing as through no fault of hers she could not avail herself before court to be cross-examined by the respondent. It was her conclusion therefore that the court below should have granted the adjournment and allowed the matter to be determined on the merits. The judgment herein predicated as, in her opinion, it was on a wrongfully denied adjournment should itself be set aside. About the judgment itself she contended it was entered in.error. It was application for an adjournment should have proceeded to he on the Third Party Notice. It never did so. Instead it, wit judgment against the appella =I e espondent. In the view of the appellant the court. thereby erred. It did not follow out hearing if not both parties then most dg ent the said court gave no indication that it considered the evidenc duced by the parties. Arguing, as we understand the appellant, not only that t e trial court erred in not considering the evidence before it but also that it would not have come to the conclusion it did had it been minded to do so. On the basis of the above arguments the appellant believes the judgment herein is untenable. It should be set aside and the matter remitted back to the court below for a hearing. The Respondent It opposes the appeal. In its view the court below properly exercised its discretion in refusing to adjourn the matter. The appellant’s counsel only notified the court and the respondent a day before the date of hearing of its inability to attend court on February 6. It had however been aware of the matter in Lilongwe since December 17, 2017 when it was served with a notice exercised its discretion. About the judgment the respondent was certain ‘that...the ntyentitled to enter the said i 1g are unfounded. This matter ajudgment it must be presumed to have ions as advanced in the affidavits. it on Februar 6, 2018 and secondly whether the judgment herein was entered in error as alleged or at all. There is also the other, maybe peripheral, question of whether on the evidence before it the court below came to the correct decision. THE LAW It is necessary that we restate some of the principles of law engaged in this appeal. First is that appeals in this Court proceeds by way of rehearing. See Order Ill Rule 2[1] of the Rules of the Supreme Court of Appeal. See also the case of Dr A P Mutharika & Electoral Commission v Dr Saulosi K Chilima & Dr Lazarus M Chakwera Constitutional Appeal Case Number 1 of 2020[unreported][The Elections Case] where the cases of Steven Changwalu & DHL Ipeematioral Vv Redson Chabuka & Hastings Magwirani [2007] MLR 382 ond ¢ soghlan v Cumberland (1898) 1 Ch. 704 were cited with approval. In the former the Court said: he whole of the he trial; it is as a general rule a rehearing on the ts inc uding a record of the evidence’. “ In the latter Lindsay MR said: ‘even when the appeal question of fact the court has to bear in mind that it is,its du ‘ to rehear the case and the court must the judge with such other materials as dimi it. The court must then make up its own Second is that an appellate court should be slow to set aside a discretionary order unless the exercise of discretion appealed against is perverse. In that regard the case of Finance Bank of Malawi v Tembo [2007] MLR 99 held that a court’s exercise of discretion will only be impeached if it is shown that such exercise was under a mistake of the law or in disregard of principle or under a misapprehension of the facts. See also the case of Minister of Finance & Others v Mhango & Others[2011] MLR 174 where it was held that where a tribunal has exercised its discretion to refuse an adjournment such a decision should only be reversed on appeal if it can be said that the exercise discretion was perverse. Thirdly and now speaking about adjournments the case of Ngwalo V Unitrans Malawi Ltd [2000-2001] MLR 352 held that an adjournment is not granted as a matter of course. There must be good reasons for the court to order one. THIS COURT’S CONSIDERATION OF THE ISSUES The Adjournment The law and practice relating to adjournments is, in ou good cause. Secondly it is clear from the court, which this court is, c exercise is perverse, mi misapprehension of f. for the appell nt had two applications set down for hearing on this very day. True that it was physically impossible for him to be present at both hearings. But clearly equally true is the fact that the situation would not have degenerated into what it did if counsel for the appellant had conducted himself in the manner of a reasonable counsel. He could for instance upon being advised in December 2017 that he had another application in Lilongwe on February 6 have rescheduled the appearances. He could, in advance, also have notified one court that he would not be available. In the alternative he could have made arrangements to have one of the applications handled by another counsel. That in our judgment would have done away with the adjournment in so far as it was based on Counsel’s double engagement. Without, we feel obliged to say, the unnecessary reference to Hon. Manda, J. as being senior to Hon. Sikwese, J. Unnecessary costs in time, treasury and inconvenience would also have been avoided. And perhaps most.4 portantly it would have avoided exposing the appellant’s Counsel to t in suggestions that he did not by his above referred to condu Bench and the Bar sufficient respect. We are aware of the appellant’s argument that the adjourned anyway in view of the respondent’s r appellant and the appellant’s obvious failurezto True the appellant did not tu J : examination. But that does not mean that the matter would ( lly ave failed to take place. It would when it declined to grant the appellant’s application for an adjournment on February 6, 2018. The Judgment We will not belabor the issues. The court below erred in entering it. Like has been said above the business of the court on this day was to first hear an application for an adjournment. Upon its dismissal the Court below should have, in our view, then proceeded to deal with the Third Party Notice by way of hearing and thereafter rendering its decision. It did not do so. It instead dismissed the application for an adjournment and thereupon determined the Third Party Notice saying ‘! disallow the application and order that judgment be entered against the 3" party as prayed’. There is no record of either party having addressed the court on anything other than the adjournment. On having been heard on the merits/demerits of the Third Party Notice. The court thereby erred. We agree with the appellant that after disposing of the adjournment it should have notified the parties of its intentio to henceforth hear and determine the Third Party Notice. It should actually, ave heard the affidavits/written arguments. DETERMINATION There was nothing wrong abo exercised its discretion in decli n, Blantyre Registry where the Judge in Charge will Judge other than the one whose decision is now under the said new Judge will proceed to determine the matter on the COSTS Costs are in the discretion of the Court. They usually follow the event. In the instant case the appellant has succeeded but it must be remembered that we would probably not be here if she had conducted herself properly in the matter of the adjournment. Each party will therefore bear its own costs in this Court. The costs in the court below will be determined at the conclusion of the matter in that court. Mwaungulu, JA Precis accept the order for costs for reasons appearing later... In every case’ and in this uld, when exercising the Civil Procedure Rules, 1998, and t Rules, 1917, respectively. The: The overriding principle For this Court, under section 8 (b) of the Supreme Court of Appeal Act, the rules and practice of procedure of the Court are the Act itself, its rules of Court - the Supreme Court of Appeal Rules - and, for matters not specifically provided for, the law, practice and procedure current in the Civil Division of the England Civil Court of Appeal - now the English and Wales Court of Appeals 10 (Civil Division). In the England and Wales Court of Appeal (Civil Division), the Civil Procedure Rules 1998. Part 1 of the Civil Procedure Rules, 1998, provides for the overriding principle in the Rules. For the Court below the overriding principle contains in Order 1, rule 5 of the Courts (High Court) (Civil Procedure) Rules, 2017. Order 16, rule 5 of the Courts (High Court) (Civil Procedure) Rules, 2017 provides for adjournments of trial - which the judgment appealed from was. Order 1, rule 5 of the Courts (High Court) (Civil Procedure), Rules, 2017, provides: justly and this includes- (a) ensuring that the parties are o : (b) saving expenses; oe —— ich are proportionate (a) | exercises any power conferred on it by these Rules; or (b) interprets any written law, rules and regulations. (3) | The parties to any proceeding shall assist the Court to further the overriding objective of these Rules. (4) The Court shall further the overriding objective of these Rules by active case management. ll (5) Active case management shall include — (a) encouraging the parties to co-operate with each other in the conduct of the proceeding; (b) identifying the issues for resolution at an early stage; (c) deciding promptly which issues need full investigation and trial, and accordingly disposing of other issues, summarily; (d) deciding the order in which issues are to be resolved; (e) encouraging the parties to use an alternative dis resolution such procedure; (f) assisting the parties to settle the whole or part (s) fixing timetables, or otherwise contro proceeding; é (h) considering whether the likely benefi ; the cost of taking it; (i) | dealing with as many aspec same occasion; (j) making use of technolog (k) giving directionst quickly and efficiently, "eae the Court ye “under its inherent jurisdiction and Order 16, rule 5 of the jurt) (Civil Procedure) Rules, 2017, to adjourn and the colossal Court) (Civil Procedure) Rules, 2017. Order 1, rule 5 of the Courts (High Court) (Civil Procedure) Rules, 2017 stresses the plenipotentiary of the overriding principle. Order 1, rule 5 (2) (a) and (b) of the Courts (High Court) (Civil Procedure) Rules, 2017, require that the Court below to seek to give effect to overriding principle when exercising any power conferred upon it by the Rules and when interpreting any ‘written law, rules or regulations.’ These principles 12 apply the more so when a court has, as Chikopa, JA, puts it, to decide whether to adjourn or not to adjourn. In this case, the Court below overlooked, besides the principles laid by the general law, from all consideration Order 1, rule 5 when exercising the power to adjourn under Order 1, rule 5 of the Courts (High Court) (Civil Procedure) Rules, 2017. The Court below was ambiguous on how to proceed where a party is, for some reason absent at the hearing or trial date. Moreover, the Court below received a little assistance from Counsel on the = Procedure) Rules, 2017 Before the Civil Procedure Rules, 1998, neip es apply to this Court e ‘ eal Act and are incorporated relevant, be underst e been affected, in relation to this Court, by Part 1 of the Civil Pro 1998 and, in relation to the Court below, by decision - save this one - of the Court below where the overriding principle has been applie discussed when deciding, suo motu or at the behest of the parties, to adjourn proceedings. The decision in this matter, however, is one where the overriding principle was not even cited or discussed at all. This Court, however, would, given section 8 (b) of the Supreme Court Act, regard very authoritatively decisions of the England and Wales Civil Division of the Court of Appeals. The decisions are very persuasive in the Court below. These decisions, given that Part 1 of the Civil Procedure Rules, 1998, is in pari 13 materia with Order 1, rule 5 of the Courts (High Court) (Civil Procedure) Rules, 2017 would apply to the Court below. No decision comes to prominence than the latest decision of the England and Wales (Civil Division) Court of Appeals in Bilta (UK) Ltd (in liquidation) and Others v Traditional Services Ltd [2021 EWCA 221 (22 February, 2021 and in the judgment of Nugee, LJ., with who Richards and Jackson, LJJ., agreed. Bilta (UK) Ltd (in liquidation) and Others v Traditional Services | helpful if | indicate my concl These are that Mr. Scorey is rigt adjourn of this type is whether j be granted, regardless of inconvenience to ; a r court’users, unless this were outweighed by injustice > Court of Appeals and the English and Wales Court of Appeal before the il Procedure Rules, 1998, that Nugee, L. J., considers may illuminate principles underpinning the decision whether or not to adjourn. Nugee, LJ, continued: There have of course been many procedural changes since 1943, not least the introduction of the CPR, but unless these have made all the difference, it 14 would, | think, be surprising that what struck them then as giving rise to a clear risk of injustice should be regarded very differently today. The wider principle, therefore, has not changed by the Civil Procedure Rules that, following the civil procedure - now extended to criminal proceedings under The Criminal Procedure Rules - in the Woolf reforms that have stormed the common law world. The principAL thread through all this is that, apart from reason -or grounds of adjournment, the court, where an adjournment is sought, refus allowing a trial date, a material witness: all other witnesses were hea Denning MR (Edmund Davies said: If by refusing an agi On 22 February, 1990, the Court of Appeals decided Lombard Finance v Brookplan Trading & Others (unreported). The defendant, whose defence was that the guarantee agreement was fraudulently altered, applied two weeks before trial to adjourn proceedings because a material handwriting expert was appearing in another court. The Court below refused adjournment because the defendant had left it for too late. The Court of Appeal allowing the appeal said: 15 | have borne in mind the reluctance this court should have to interfere with the exercise of a judge's discretion, but it does seem to me that it would be unfair in the extreme that, against the background of circumstances | have described, this applicant should be deprived of the expert witness simply because he did not notify the court a little earlier that the witness was not available. In both cases, the Court felt it was unfair on the defendant who seeks to adjourn to continue with the trial where it would be unfair not to hear the defence or evidence. The position is not any different in Austra Civil Procedure Act, 2007 incorporating the principles in the»Civil™ Rules, 1998. In Sali v SPC Ltd (1993) 67 ALJR 841, 84. Australia: | In Maxwell v Keun, [[1928] 1 KB 645] English although an appellate court will be slow to inter High Court of l held that, wi 1the discretion of a ar the refusal will result in a trial judge to refuse an adjournment, it denial of justice to the appli injustice to any other party established and has been Moreover, the judgment a further proposition In determining whether to grant an adjournment, the judge of a busy court is entitled to consider the effect of an adjournment on court resources, the competing claims by litigants in other cases awaiting hearing in the court as well as interests of other parties ... What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other 16 litigants and the public interest in achieving the most efficient use of court resources. The Sali case, in extending consideration of court resources and unfairness to others waiting for a day in court, broaden the necessary matters that should dominate the decision whether or not to adjourn. In Canada, where | doubt if she has the equivalent of Part 1 of the Civil Procedure Rules, 1998, Courts approach the matter from principles of natural adjourn, that is the question,’ the authors state: Although the decision to grant an adjournment i has established that an adjournment must be: hearing. A fair hearing is one squarely before the decision- The next Case, decided by the England and Wales Court of Appeal (Civil Division) after the Civil Procedure Rules, 1998), was Teinaz v Wandsworth London BC ({2002] EWCA Civ 1040). The impact of the Civil Procedure Rules, 1998, was not considered. On further appeals, Peter Gibson LJ (Arden LJ and Buckley J agreeing), remarked: Although an adjournment is a discretionary matter, some adjournments must be granted if not to do so is a denial of justice. Where the consequences of the 17 refusal of an adjournment are severe, such as where it will lead to the dismissal of the proceedings, the tribunal or court must be particularly careful not to cause an injustice to the litigant seeking an adjournment. As was said by Atkin LJ in Maxwell v Keun [1928] 1 KB 645, 653 on adjournments in ordinary civil actions: "| quite agree that the Court of Appeal ought to be very slow indeed to interfere with the discretion of the learned judge on such a question as an adjournment of a trial, and it very seldom does so; on the o nd, if it granted an adjournment, howey court or to the other parties d Wales decision. The defendant, shortly before trial day, changed solicitors except for counsel to adjourn the case because a material witness forsickness would not travel from Malaysia to England. Satisfied about at least three of the four conditions in Dick v Piller [1943] | KB 497, Lightman J refused adjournment. He thought that, while previous decisions were useful, a court faced with an adjournment, has now to proceed on the overriding principle in the Civil Procedure Rules, 1998. Proceeding on these considerations, the Court refused adjournment. There was no appeal to the then Court of Appeals. 18 In Terluk v Berezovsky [2010] EWCA Civ 1345 the case turned out more on whether or not to adjourn to enable a defendant to have legal representation. Sedley LJ (sitting with Mummery LJJ sitting) said: Our approach to this question is that the test to be applied to a decision on the adjournment of proceedings is not whether it lay within the broad band of judicial discretion but whether, in the judgment of the appellate court, it was unfair. In Gillies v Secretary of State for Work and Pensions Lord Hope said (at 86): ? = "[T]he question whether a tribunal ... was acting in breach ofthe pr natural justice is essentially a question of law." As Carnwath LJ said in AA (Uganda) v Secretary. st as longstanding as the BAT, ex parte Bullen (1976) application for adjournment was refused. The Court considered the impact of the Civil Procedure Rules, 1998, on the power to adjourn. The defendant contended that he lacked capacity and was unable to give evidence. But running up to trial, the case was strewn with periods of adjournments and adverse peremptory orders about further evidence and this was the third time the case was finally set down for hearing. The England and Wales Court of Appeal affirmed the refusal. Arden and Davis LJJ agreed with Baron J when she said: 19 a. [T]he overriding objective requires cases to be dealt with justly. CPR 1.1(2) (d) demands that the Court deals with cases ‘expeditiously and fairly’. Fairness requires the position of both sides to be considered and this is in accordance with Article 6 ECHR. b. [Flairness can only be determined by taking all relevant matters into account (and excluding irrelevant matters). c. [I]t may be, in any one scenario, that a number of fair outcomes are immaterial factors, omitted to take into accou principle or come to a decision that was im In Solanki v Intercity Telecom! "Mr. Small rightly accepted th uestion of whether or not to grant an court is not confine Sir considering whether irrelevant factors were s were ignored in the Wednesbury sense, or ourn lay within the broad band of judicial al judge. Rather, the authorities make clear that, in ercise of discretion, the Court of Appeal has to be satisfied ision to refuse the adjournment was not “unfair": for example, see Terluk v Berezovsky [2010] EWCA Civ 1345 (per Sedley LJ at paras 18-20), quoted below, particularly in circumstances where his right to a fair trial under Article 6 ECHR is at stake." She proceeded and said “Obviously overall fairness to both parties must be considered.” 20 The fairness question works together with the reasons for adjournment. In agreeing with Nugee, LJ, in Bilta (UK) Ltd (in liquidation) and Others v Traditional Services Ltd, Jackson, LJ, said There are two aspects to an application to adjourn: assessing the facts and exercising the discretion. Here, the facts supporting the application were not in dispute and the appeal concerned the exercise of discretion. But in every case, the court will first need to assess the facts behind the a lication, and The incidence of the Overriding Principle The incidence of the overriding principle on t all. “question on oes The England and Wales High Court in Albon v Naza Motor Trading 3d (No 5) assumed primacy of the overriding principle. In Jn:Dhillon-y Asiedu the England and Wales Court of Appeal appli d_ the .princ ogether with other principle without resolving primacy. Iti lta (l Albon v Naza Motor Trading Bhd No-5) and Dhillon v Asiedu, where the England and Wales Court of, Appeals.ct es the sync. Nugee, LJ, says: Mr. Parker had a thir ission, which was that in applying the overriding relevant. As a matter of the drafting of the rule that is udgment therefore the relevant principles are as | have ently, the overriding principle is one among others that a court must consider when deciding whether or not to adjourn. In Australia the position is whatever principles were before the Civil Procedure Act, 2007, they are affected by the statutory rule - despite that a Court has inherent jurisdiction to adjourn proceedings Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246 at 252) In State of QueenslandvJ L Holdings Pty 21 Ltd (1997) 189 CLR 146 at 154, the Court, Dawson, Gaudron and McHugh JJ, said: Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of the court is the attainment of justice and no principle of case management can be allowed to supplant that aim. 4 Basten and Campbell, JJA agreed with Spigelman CJ, in Den Broadcasting Corporation [2008] NSWCA 37 when he observed and via statutory authority for rules of court. Said In this State J L Holdings must now be unde give effect to the overriding se — to * cilitate the just, quick and cheap resolution of the real issues i eedings” — when exercising any power under the Act or Rules. The power to adjourn (High Court) (Civil Procedure) Rules, 2017, is apart from it, the Court has inherent power to The Court may adjourn trial at any time for good reasons; which reasons shall be endorsed on the court record. The power to adjourn is both enabling and limiting. The section is a general power to adjourn. It is limiting because, where there are no reasons or the reasons are bad, the court may not adjourn. The Court may only adjourn for reasons - good reasons. The Court can act on its own, in which case it may require parties to attend, or at the instance of a party who has given notice to another. The Court acting suo motu may have to consider the wider powers and ade orders that it can make under the Rules of Court. It is important that the application to adjourn be made much earlier (Law Society of Upper Canada v Igbinosun; McIntyre v Ontario College of Teachers). A party, however, has a right, as happened in this Court, to apply for adjournment in court. Whatever the case, the Court has to exercise discretion and exercise it judicially. Consequences of a refusal or allowing an adjournment Where a party, as happened in this case, applies for adjournment in (a) where a party® tt [ e trial, it may strike out the whole of the pf § not attend, it may strike out his claim to a counterclaim; and S (2) e rule, it may, on application of a party, subsequently restore the proceeding, or that part of the proceeding that was struck out. he Court strikes out the proceeding or any part of it under this (3) Where a party does not attend and the Court gives judgment or makes an order against him, the party who failed to attend may apply for the judgment or order to be set aside. 23 (4) | An application under sub rules (2) or (3) respectively must be supported by evidence. (5) Where an application is made under sub rules (2) or (3) respectively by a party who failed to attend the trial, the court may grant the application only if the applicant- party does not attend. Failure to attend eschews one’s fa court - to a fair trial where one can respond to the case of another and advance one’s side of the case (Unit Traders vs. Commissioner of Customs 2012(281) ELT659 (Mad). No fair trial questions arise when a court proceeds in the absence of a party who, served with a notice of hearing or present at the last adjournment, does not attend. Fairness is restored, if unfairness at all proceeded from obtaining such a judgment, in that in this scenario, the defendant can, without appealing, set aside a judgment. 24 Dismissal, when the complainant is absent, is with liberty to restore, subject of course, to the statute of limitation. Where, however, a party, present or absent from court, applies for adjournment, the outcome depends on whether or not the Court will adjourn the proceedings. The need for reasons for adjournment conflates. Fairness - the right to a fair trial - arises whether the court refuses or adjourns the case. Where the Court will, it can only do so on the peril of reasons the reasons aie elo Public Prosecutions v Ozakca ({[2006] NSWSC 1425; McCarthy [1924] 1 KB 256, 258 (CA). In the latt fairness of the trial and rules of natural justice arise. Where a party is present in co situation of non-attendance co Court) (Civil Procedure) Rules. their case as justice demands or requires. The the hearing is, on the face of it, a direct determination. Any adjournment must, therefore, encourage parties to present their case fully so that a court decides the case as justice requires. This is an instance where justice itself has to be balanced with procedural fairness - the process of the court to ensure that there is a just outcome in the first place. Failure to adjourn a case offends procedural fairness. In Nitiva v Director of Public Prosecutions [1999] NSWCA 332, the Court of Appeal said Zo The principles upon which an adjournment ought to be granted are well established. The court has a discretion to grant or refuse an adjournment. However, a refusal to grant an adjournment can, in certain circumstances, constitute a denial of procedural fairness: Procedural fairness must be even handed both sides (The Queen v Lewis [1988] HCA 24; 165 CLR 12, ” In Watson v Watson (1968) 70 SRINSY 203 at 206, aoe be considered”. Exercise of the power and/or discretion A fortiori, an adjournment will not, therefore, course. Conversely, an adjournment will berefu » decision was reversed for denial of natural justice. in McIntyre v. Ontario College of Teachers, the defendant involved in other proceedings and for health reasons, the case was set ona day on a peremptory order that, for health reasons, the defendant should produce a medical report. On Appeal the Court confirmed the trial court’s order refusing adjournment on health grounds without a medical report. The matter is extremely discretionary on the facts of a particular case. The period up to the time of adjournment and existence of a peremptory order are reasons, among many, that a court regards in exercising discretion. These considerations, like others like them, are neutral in that their absence or 26 presence are not determinative of whether or not to adjourn. They are matters that a court will regard. Lord Bingham in R_v Aberdare Justices ex parte Director of Public Prosecutions (1990) 155 JP 324 (then as Bingham LJ) and in R v Hereford Magistrates’ Court ex parte Rowlands [1998] QB 110 essays crystallization (Crown Prosecution services v Picton [2006] EWHC 1108 (Admin); Pari-Jones v Crown Proswecution Service . [2018] EWHC 3482 (Admin) Case No: CO/2234/2018). The attempt is not exhaustive. There are matters about 497; Petrovic v Taara Form Work (Canberra) Cf Bloch v Bloch (1981) 180 CLR 390), the typ a Anor and Director of Public § Another ); rights of others waitin y in court, backlog and delay and 4 (1993) 67 ALJR 841); whether this is t (DPP v Chaouk & Anor); consent of the iv Ke-Su Investments Pty Ltd (1985) 1 NSWLR S 2010] NSWSC 1418); objection to adjournment generally fairness questions(Sa Truth Newspapers Pty Ltd (1987) 9 NSWLR 382 at 386, 387; McMahon-Winter v Larcombe [1978] 2 NSWLR 155; Ceasar v Sommer [1980] 2 NSWLR 929 and McMahon v Gould (1982) 7 ACLR 202. These, and many more, are the mosaic and hotchpotch in which the discretion is exercised. For adjournment in criminal proceedings DPP v Gursel Ozakca & Anor [2006] NSWSC 1425 and DPP v Chaouk & Anor [2010] NSWSC 1418) are pertinent. The decision to adjourn or not adjourn can be very consequential generally. 27 Besides the often quoted statement, justice delayed is justice denied, adjournments can result in public criticism. Despite widespread public criticism of delays caused by adjournments, there has not been any study in Malawi on the matter as to provide a more comprehensive solution. Consequently, the solutions have been sporadic and inadequate. Authoritative works by the United Nations and World Bank reports and academics are both moribund and interesting reading on the problems, interventions for law rel m ( PJDP, 2015: 4); (World Bank 2011: 43): (World Bank Dandurand (2014: 424) A report by these Programme (PJDP, 2015a: 23); (CEPEJ, 2 Report 1374; PJDP, 2015b: 9 (2013: 4); (PMD: 2014; Dand Willson, 1993); Michels (1995): i FPEJ, 2008: 15); (Raine and 006: 168); World Bank, 1999: 34; © Research Report 1374; ‘Addressing ocess, Vancouver: International Centre and Criminal Justice Policy .law.ubc.ca/files/publications/pdfs/) Internationa Law Journal 24 (6): $26-S55 (http: //ir. (4wnet.fordham.edu/cei/viewcontent.cgizarticle=1778&context=il); ‘European Commission for the Efficiency of Justice (CEPJ) (2008). Compendium of “best practices” on time management of judicial proceedings. Brussels: Council of Europe(http: / /euromedjustice.eu/system/files/20090706165605_Coe), Compendium of Best Practices on time management of Judicial Proceeding.doc.pdf Hazra, A. K. (2006); ‘Possibilities, Dynamics and Conditions 28 for Reform of the Judiciary in India, in McInerney, T. F. (ed) Searching for Success: Narrative Accounts of Legal Reform in Developing and Transition Countries. Rome: International Development Law Organisation (Retrieved from: http: //www.ebrd.com/downloads/legal/what/idlo.pdf); Libman, R. (2006)0, ‘Criminal Trial Rules in Provincial Courts in Canada, 2007-2008 Edition, Salt Spring Island: Earlscourt Legal Press Inc. Messick, R. E. (2015); ‘Uncorking the bottlenecks: Using political economy analysis to address court delay, Bergen Norway: U4 _ Anti-Corruption Resource Centre. “Report by the Comptroller and - Effective Use of Magistrates’ °C Auditor General, House of Commons (https: //www.nao.org.uk/ ep olkit, Wellington: New Zealand Minister of http://www.fedcourt.gov.au/pjdp/pjdp- -klog-and-Delay-Toolkit.pdf), Pacific Judicial Additional ‘doc mentation, Wellington: New Zealand Minister of Foreign Affairs and Trade. Retrieved from (http://www.fedcourt.gov.au/pjdp/pjdp- toolkits/Reducing-Backlog-and-Delay-Toolkit-AD) (pdf), Performance Management Directorate (PMD) (2014); ‘Court Case Delays: Impact Evaluation Diagnostic Study Report, Nairobi: PMD (http://www. judiciary.go.ke/portal/assets/filemanager_uploads/reports/COQU RT%20CASE%20DELAYS- 29 %20IMPACT%20EVALUATION%20DIAGNOSTIC%20S TUDY%20REPORT ) (pdf Plummer, J. (2012); ‘Diagnosing corruption in Ethiopia: perceptions, realities, and the way forward for key sectors. Washington D. C.: World Bank (https: //openknowledge.worldbank.org/bitstream/handle/10986/13091/ 69943 OPUBOPubl067869B09 780821395318) (?sequence=1); (Raine, J. W., & Willson, M. J. (1993); ‘Organizational culture and the scheduling of court appearances,’ Journal of Law and Society, 20(2), ( World (http: //wwwwds.worldbank.org/external/defa /2016/03/18/090224b082f0e108/ 2_0/Rendered/PDF/Reducing0¢ urtOomdth DU ourts), World Bank, (2010b); ‘Uses and case of Ghana’s Specialised Courts,’ Washington Bank (Retrieved from: Court Backl nd Delay Reduction Program,’ Washington D. C.: World Bank (http: // documents.worldbank.org/curated/en/2011/08/1 8286988 /malaysiacou rt-backlog-delay-reduction-program-progress-report), World Bank, (2013); Kenya - Judicial Performance Improvement Project, Impact Evaluation Design Summary, Washington D. C: World Bank (http: //siteresources.worldbank.org/ PUBLICSECTORANDGOVERNANCE/ Resource 5/285741- 1401909601248/Summary_Kenya) (pdf) World Bank (2014); Doing Business 2015: Going Beyond Efficiency,’ Washington D. C., World Bank 30 (http://bit.ly/1tgNlae. (12 GSDRC Helpdesk Research Report 1374 Expert contributors). helpdesk@gsdrc.org). Some reforms include legislative reforms limiting the number of adjournments to three (India); times in which cases must, from registration, be concluded to one years; limiting to three months the time of delivery of judgment, reducing activities in the process; introduction of incentives to judges, case ScAREIIEKe limiting court based adjournments and adoption @ of ot concerns caused by adjournments. | would, therefore, reduce those pret ot ‘have justice settled after exercising any power under the Rules of Court - not any less when exercising the power toa djourn - that they “shall seek” to “give effect” to the overriding principle that requires courts to deal with proceedings “justly” by ensuring that proceeding are dealt with “expeditiously and fairly,” allocating to a proceeding an appropriate share of the Court’s resources, while taking into account the need to allocate resources to other proceedings. A court must, therefore, refuse or allow adjournment with a view to promoting occurrence of a fair trial - fair to the applicant and the respondent. 31 There are bound to be situation where, all considered, it is unjust or unfair to a complainant to allow adjournment of a trial. Just as there are bound to be circumstances where it is unfair or unjust to refuse postponement. The Court, however, also considers the fairness question from the reasons for adjournment. A court may still refuse or allow adjournment where no reasons are given by the applying party or the opposing party. The reasons for, adjournment ee go more to process than principle. Because fairness, by itself a ad reason édlourmment to enable him to procure Dr Evans’ attendance as a witness, that refusal may well have constituted such a failure. No such application for an adjournment was, however, made. If it had been made, it is highly probable that the Tribunal would have acceded to it: indeed, counsel who appeared for the appellant stated that he did not dispute that, if the appellant had applied for an adjournment, the Tribunal would have granted it. The absence of any 32 application for an adjournment does not, however, necessarily conclude the issue adversely to the appellant. The failure of a tribunal which is under a duty to act judicially to adjourn a matter may, conceivably, constitute a failure to allow a party the opportunity of properly presenting his case even though the party in question has not expressly sought an adjournment (see Priddle v Fisher [1968] 1 WLR 1478). In this regard, however, it is important to remember that Se the relevant duty of the Tribunal is to ensure that a party is given. a reasonable = opportunity to present his case. The incidence, therefore, is when a court refuses adjournmen ing. The infringement in this case, counsel and or a party is present at t 1 of the right is a consequence of refusing or alle = — “oe . or strike the pleadings - the d . Iq the ormer case, there is no hearing where proceedings commenced Court below never gis nissed the pleadings. In any case, third party proceedings seemingly comment = ee. , therefore, could only proceed to a trial or hearing. r t, here it is the complainant’s or the defendant’s application, defendant “or ‘the defendant’s counsel to cross-examine witnesses and contradict other evidence. The defendant will also be allowed to call to lead evidence in defence and have one’s witnesses cross-examined and evidence contradicted. Once a court allows an adjournment, parties will be afforded a full hearing as a matter of course. The Court has to call for a full trial. The court cannot, unless agreed to by parties, act on witness statements or affidavit evidence only. As this Court observed recently in of Lakhani and 33 another v Vindhani and another (2012) (MSCA) Civil Appeal No 55 (unreported), a judgment with parties present will not be res judicata where a court proceeds with a bare and hollow trial where, required to have a hearing, the judge enters a default judgment without a trial. A court must at a refused or allowed adjournment afford parties a full trial if there is no complication based on the availability of a party or a party’s witnesses. Where proceedings continue a court must resolve fairness of the trial from absence of a party’s witnesses. On the face of it, if there < « ot] ing else, absence of a party or material witnesses or evidence “tee trial. A material witness need not ieee bea party2sewi ness” where, like right of a party to legal represe The right to » legal s i ity and lucidity so that a court can do justice or the fair so that a litigant must, where feasible, have counsel in all matters lésa “and more so when asserting rights in a court of law. Consequently, faced with an adjournment where a party may not be represented or, if represented, represented adequately, absence or otherwise, goes to the right to a fair trial. A court, therefore, will not have to act in a manner where a party may not be represented or, if represented, adequately represented. Inadequate representation may arise because a legal practitioner has not adequately prepared for the trial; where there has been an abrupt 34 change of a legal practitioner; or where counsel in court was not the one who is in charge of the matter. The power of this Court on appeal against an order of adjournment The foremost consideration on appeal is more about the manner the discretion was exercised rather than the actual discretion made. This Court does not proceed on the basis that, if it were in the shoes of the court below, it would have exercised its discretion differently. This Court proceeds onthe basis that iid be granted is a matter which lies within An appeat based upon the judge's refusal to where it > that the sorlge has acted on some wrong principle, or has given weight to extraneous or irrelevant matters, or has failed to give wait or sufficient weight to relevant considerations, or has made a mistake as to the facts. Even if the precise nature of the error may not be discoverable, it is sufficient that the result was so unreasonable or plainly unjust that the appellant court may infer that there has been a failure properly to exercise that discretion. An appellate court may not, however, substitute its own 35 findings of fact for those of the primary judge unless there was no evidence to support a particular finding, or the evidence is all one way or the judge has misdirected himself in relation to those facts. If the appellate court is satisfied that there has been an injustice to one of the parties as a result of the judge’s exercise of discretion it is under a duty to review the order made.” An appellate Court will certainly interfere where the power to adjourn is used in a way as to undermine the justice system or process in orger, to ensure legitimacy or decorum in the system. Kirby, P, as he then was Judges of the District Court (1992) 29 ALD 197, 200: uit review to en gra on ae lari a : parte Director of Public In this matter, applying the principles mentioned earlier and the powers of this Court on appeals of this nature, the Court below overlooked important factors which, if considered, would have resulted in adjournment of the matter. The Court further never afforded parties a full trial when ultimately it refused adjournment. The Court below never considered that refusal of an adjournment would result in an unfair trial in that the appellant would be inadequately represented by counsel who had no clue on or had minute 36 knowledge of the case. On the facts, two reasons were advanced for the need for adjournment and both reasons were backed by evidence. First, the adjournment was sought because of a listing or scheduling problem between two courts of concurrent jurisdiction. Surely, when that happens, it is a germane reason for adjournment for either case - more especially, if there were no actual discussions or consultations - which must occur - between the Registrar and counsel on setting down casesz.. The vesve se soe Se counsel has a right to make an application in court. Listin ng sp ct area so0d foe : reason for adjournment (State Pollution Control Ox" Australian Iron and Steel Pty Ltd (1992) 29 NSWLR 487,493- aX fe Ser necessarily ect a party’ s application for adjournment on the first or second request. Alt - shows that this was a first adjournment and the Court should have been‘more condescending. Additionally, that matter was commenced in 2018 and first set down for hearing. The matter was conducted with dispatch. There is no suggestion that there could be a scheduling problem. Certainly, where there is a scheduling problem, a court must be very cautious when adjourning a case. Practically, when a matter is adjourned, unless there is a possibility of a short adjournment, the matter falls to the bottom of the general list and parties and other litigants will have lost an 37 opportunity for a day in court. The court’s resources - time and space - will have been lost. A judge’s preparation will have been deflated by the prospect of another preparation. Admittedly, these considerations go to principles of case management. They are, however, considerations which must not trump the demands of justice and need for a fair trial. In Queensland v JL Holdings Pty Limited [1997] HCA 1; en) 189 CLR the Court ee Gaudron and adie JJ) wi from sitet an issue which is fairly arguable. caf in itself. It is an important and useful aid for,enst — 1 ae fo Sze anberra) Pty Ltd (1987) 62 FLR 451. A court supported Eooens: The matter, on proper exercise of the discretion, should have been adjourned. But even if these reasons were not germane, which they were, the court below never considered the consequences of adjournment on a fair trial. Refusal to adjourn the case where a party and a party’s witness are absent was actually infringing the right to a fair trial and adjournment should have been allowed at the peril of costs unless adjournment would have caused injustice to the complainant. There is no evidence or 38 suggestion that this was the case. The Court below should have considered this principle. The discretion was exercised after overlooking a material factor. Equally, the court below, actually, even if the discretion was properly exercised, and it was not, the court below in conducting the trial itself as it did actually denied the appellant the right to a fair trial. It should not have proceeded purely on affidavit evidence or witness statements. It should have asked the complainant to sia evidence and subject it to 2 and allow ee ee ngs. ‘The court can, in ce ie case. The effect of every judg ‘ € ~ within 14 days so that the from Counsel. There is no presumption that anyone, let alone judges, know all the laws or rules. Courts, therefore, rely heavily on counsel from a legal practitioner. In fact, the duty on the Court and Counsel to identify legal issues quickly is one important tenet on the overriding principle of the Civil Procedure Rules, 1998, and the Courts (High Court) (Civil Procedure Rules, 2017. There were, therefore, conceptual difficulties about how to treat the judgment of the court below. Was it a judgment in default because the other 39 party was absent technically? In my opinion, it was on the facts. Where a judgment is entered in the absence of another party - and evidence is given - it is still a default judgment. The absent party has technically three options: appeal against the decision on the evidence and demonstrate that there was no case on a balance of probabilities; appeal and apply for additional evidence under the Supreme Court of Appeal Act; or apply to the same Court to set aside the judgment to enable a further hearing. The problem with the first two options is that, after an appeal very long, there will be a full trial. This can be av This Court and the Court below can properly deny leave t nC the trial cannot escape that Honourable E B Twea SC JUSTICE OF APPEAL 40 Du rcusoa/\__ Honourable Dr J M Ansah SC JUSTICE OF APPEAL \ \ Honourable Honourable Justice A D Kamariga JUSTICE OF APPEAL — — we 4]