Council for The University of Malawi v Masiye (21 of 2009) [2010] MWSC 15 (1 July 2010)

IN THE MALAWI SUPREME COURT OF APPEAL AT BLANTYRE MSCA CIVIL APPEAL NO. 6 OF 2O1O (Betng High Court Lilongwe District Regist.ry Miscellaneous Ciuil Cause No. 21 of 2009) BETWEEN: THE COUNCIL FOR THE UNIVERSISTY OF MALAWI .. JoHN KApoNDA MASIvE . AND . APPtrLLANT .... RESpoNDENT CORAM: THE HON. JUSTICE MTAMBO, SC, JA THE HON. JUSTICE TEMBO, SC, JA THE HON. JUSTICD NYIRENDA, SC, JA Kanyenda, Counsel fol the Appellant Kaiasa, Counsel for the Respondent E. W. S. Mwale, Official interpreter Ethei Matunga Chisale (Ndun1'a) Senior Personal Scr-reran' RULING NYIRENDA, SC, JA This is an appeal against the decision of Justice Chombo in an appiication for judicial review pursuant to Order 53 of the Rules of the Supreme Court. The respondent was a medical student with the appellant. In the fifth and final ]/ear of his studies the appeliant informed the respondent that he had failed three sulrjects, therefore that he u'ould not be au,arded the medical qualification (MBBC) u'hich he u,as pursuing. It is against that decision that the respondent sor,ight jr-rdicial revier,l'. Before Justice Chombo the matter proceeded undel-ended. The court observed that in addition to being absent at the hearing, despite being served with the notice of hearir-rg. the appeilant did not filed a defence to the originating motion. The judgment uras therefore obtained in defauit of defence and u'ithout the appearance of the appeilant. The appellant has appealed to this Court against that judgment. The respondent has raised a preiiminary point of objection to the appeal. The respondent relies on Order 35 r. 2 of the Rules of the Supreme Court and submits that the appellant should first have sought to have the judgment set aside b]' application before the lornzer court that heard the matter before lodging the appeal. The appeal should then have been against the order of refusal to set aside the judgment, if that turned out to be the outcome of the aonlication. Order 35 r. 2(1) provides: Any judgment, order or uerdict obtained where one party does not appear at the ttial may be set aside by the Courl, on the application of that parlg, on such terms as it thinlcs 1ust. In the practice notes to the rule, it is emphasized that the appiication should be made, if possible, to the judge rn'ho tried the case, Schafer v Blyth lI92Ol3 KB 14i. It is stated further that the absent party shouid apply for a neu, triai not to the Court of Appeal but the Court which tried the action, and, if possible, to the triai Judge himself. The appellant concedes that generallv this ought to be the procedure but that there is the alternative that the Court of Appeal in its discretion could entertain an appeal direct from such a judgment. It would appear to us that the correct position is a combination of the respondent's submission and that of the appellant. The most appropriate procedure is that the absent party shouki make an application to set aside the judgment before the court u'hich tried the action and preferably before the Judge who heard the matter. It is equally correct that the Court of Appeal, in an appropriate case, has po\ /er to entertain an appeal direct from such judgment, Arrnour v Bate Ii8e1] 32 QB 323. We put it to the appellant if indeed the submission uras to urge this Court to enlertain the appeal directll'. It u'ould appear that the appellant is in a dilenrma. If the appeal were to be enterlained directiy the matter u'ould have to be determined on the evidence th:rt the respondent piaced before the court beiow whrch does not include some vital documents rn'hich the appeilant wishes to re11' upon. This therefore is a typical case where allor,l'ing the appeal to proceed would not assist the appeliant. It is clear to us that the appeilant reaiizes this predicament and therefore does not wish to proceed rn'ith this appeal. In the result, the respondents' preliminary objection is stained. We award costs to the respondent. PRONOUNCED in Open Court this 2nd Blantyre. r^.. ^f ual Lr.r u LrIy z\J r.,1.. .^10 at Sisned' HON. JUSTICE I. J. MTAIUBQT6€, JA -+.-a\ Signed: HON. JUSTICE A. K. TEMBO. SC. JA Signed:\ 1T HON. JUSTICE YIRENDA, SC