Nkhoma v Thomas and 2 others (Civil Cause 264 of 2011) [2014] MWHC 501 (6 January 2014)

AP ey ) 4 REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI ZOMBA DISTRICT REGISTRY CIVIL CAUSE NO. 264 OF 2011 Between THOMAS WRG MA roirnccsconcarerenemmennninmincawnwnnnis PLAINTIFF -And- GUSTO THOMAS ......ccccssessessesssesseessesssssscsucssessucssssesecsuccsscensees 1°" DEFENDANT HARRY GAMA -siccisasiccrnmererecememawnenmaneintaaiss 2%? DEFENDANT PEOPLE’S TRADING CENTRE LIMITED..........cccccssesssseessseess 3° DEFENDANT CORAM: Howard Pemba, Assistant Registrar Salome Chapeyama, of counsel for the Defendant Plaintiff, Not present Davie Banda, Official interpreter RULING This is an application on the part of the 3" defendant for an order that the statement of claim in this action be struck out and the action herein be dismissed for want of prosecution. The background to this action is that the plaintiff commenced these proceedings by way of summons on 15‘" August, 2011 , claiming damages for assault by the 1% and 24 defendants on the 3 defendant’s premises. It is in the statement of claim that the 3" defendant duly served a defence on the plaintiff on 30° August 2011. That on 28°" October, 2011, the parties executed a Consent Order for directions which, among other things, ordered that the matter be set down for trial by 3 December, 2011. There is shown a copy of the said Consent Order and is marked “MM1”. Then on 16° December, 2011, the plaintiff served his list of documents and since then, the matter has been left dormant for almost a year. That on 14° September, 2012, the 3" defendant, through their then counsel, applied to dismiss the matter for want of prosecution. However, the said application was dismissed for failure of the 3"? defendant’s counsel to attend to the hearing of the application on the appointed date and time. Nevertheless, since November,2012, when the 3™ defendant’s aforesaid application was dismissed, the matter has still remained dormant. It is revealed that the last thing the plaintiff did by way of active prosecution of this matter is the service of his List of Documents on 16" December, 2011. Until now, the matter has not been set down for trial. It is against this background that the 3 defendant now brings this action praying that the plaintiff’s case should be dismissed for want of prosecution since it is clear from the Plaintiff’s conduct that he has no good ground to proceed with the matter. In support of this application, the 3" defendant, through counsel, made an oral submission and filed an affidavit sworn by Mr. Madalitso Mmeta. | have heard counsel for the 3" defendant attentively and appreciated her arguments in the affidavit and oral arguments in support of this application. | have furthermore looked at and taken into consideration all the records concerning the matter herein in the light of the applicable law. In all fairness, | have found out that the argument by counsel for the 3" Defendant is meritorious having considered the circumstances of the matter herein. It is trite law that matters should have time limit; they should commence and then come to an end. There is no way a party to a matter should just be kept in suspense as to the progress of the matter with a burden hanging on them. It is against the same background that laws have been provided to guard against this. Lord Upjohn stressed this principle together with res judicata rule, in the case of Carl Zeiss Stiftung vs Rayner & Keeler Ltd.(No.2)b {1967}AC 853, in the following words: “The broader principle of res judicata is founded upon the twin principles so frequently expressed in Latin that there should be an end to litigation and justice demands that the same party shall not be harassed twice for the same cause......” (emphasis supplied) Before 1967, orders to dismiss action for want of prosecution were rarely made on a first application without giving the plaintiff an opportunity of keeping the action in being. The successful applications to dismiss in Regentin vs Beechome Bakeries Ltd (1968) 1ALL ER 566 and Fitzpatrick vs Batger & Co. Ltd (1967)2 ALLER led toa flood of similar applications. Three were dealt with together after full argument and are reported under the title of Allen vs Sir Alfred MacAlpine & Sons Ltd at (1968)2 QB229. The court of appeal in these cases made the following general observations: 1. The court will do all in its power to enforce expedition, if need be by striking out actions when there has been excessive delay. 2. There is no rule or practice that the court should never on first application dismiss the action. When the delay is prolonged and inexcusable and is such as to do grave injustice, the court may in its discretion dismiss the action straightaway, leaving the Plaintiff to his remedy against his own solicitors. 3. Mere inactivity on the part of the defendants will not amount to acquiescence in delay and prejudice his application to dismiss but he cannot rely on delay for which he has been responsible e.g. in failing to comply with procedural step. 4. The court must consider whether the plaintiff will himself be prejudiced by the dismissal when he is not personally to blame for the delay, i.e. whether his solicitors (if they were the cause of the delay) are good for damages. However, in the cases of Rowe vs Tregaskes(1968)3ALLER 447 and Martin vs Turner (1970)1ALLER 256, the Flt court still dismissed the actions for want of prosecution regardless of the fact that the Plaintiff could not be in a position to recover from his lawyers. In the present case, | agree with counsel for the 3 Defendant that this matter has taken almost a year without any progress made by the Plaintiff. The Defendant has just been kept waiting with a burden on them at the instance of the Plaintiff who has deliberately decided to sit on his own litigation. | am of the view that he is no longer interested to proceed with the matter and the Defendant therefore ought to be relieved of this burden. The delay by the plaintiff in prosecuting his own case is inexcusable and inordinate. Worse still, when the date for hearing of the application herein was scheduled, the Plaintiff herein let alone his legal counsel did not turn up despite clear evidence that they were served with the notice and no any communication was made as to why they were not available. This, | believe, just emphasizes a point that they no longer wish to prosecute the matter herein as enunciated by counsel for the 3 Defendant. It seems the plaintiff has indeed lost confidence on the merits of his case. Thus, considering the argument advanced by counsel for the 3 Defendant, there is merit in this application and the court would like to concur with him that the action herein ought to be dismissed. | therefore proceed to dismiss the Plaintiff’s action herein for want of prosecution. Costs are for the Defendant. Pronounced in Chambers this 6"" day of January 2014 at Zomba. Howard Pemba ASSISTANT REGISTRAR