Chauwa & 2 others v Malawi Congress Party (Civil Cause 140 of 2024) [2025] MWHCCiv 11 (9 May 2025)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL DIVISION CIVIL CAUSE NO. 140 OF 2024 (Before Honourable Justice Mambulasa) BETWEEN: LOVEMORE CHAUWA……………………………………….1ST CLAIMANT -AND- MOS DYCE MILANZI…………………………………………2ND CLAIMANT -AND- CLEMENT MWAKATUNDU……………………..…………..3RD CLAIMANT -AND- MALAWI CONGRESS PARTY………………………………... DEFENDANT CORAM: HON. JUSTICE MR. MANDALA D. MAMBULASA Mr. Clement Masauko Mwala, Advocate for the Claimants Mr. Abison Chikondi Chitukula, Advocate for the Defendant Mr. Francis Misheck, Court Clerk/Official Interpreter RULING MAMBULASA, J Introduction [1] The Claimants are members of the Defendant. The 3rd Claimant holds the position of Deputy Publicity Secretary for Blantyre District of the Defendant. [2] The Claimants brought this action by way of summons on 30th October, 2024 seeking the following reliefs: 2.1 A declaration that the decision of the Defendant not to hold elections for regional and district committees whose mandate has expired violates its Constitution; 2.2 An order compelling the Defendant to hold regional and district elections within 30 days of the Court’s declaration; and 2.3 Costs of the action. [3] The said summons was issued and sealed by the Registrar of the High Court of Malawi and Supreme Court of Appeal for Malawi on 4th November, 2024. [4] On 4th November, 2024 the Claimants brought a without notice application for an interlocutory order of injunction seeking to restrain the Defendant from allowing the regional and district committees, whose mandate has expired, from continuing to perform party functions until elections are held as required by the Defendant’s Constitution. [5] When the Court considered the application, it directed that it should come on notice to the Defendant. In that regard, the Court directed that the application should be served on the Defendant by close of business on 7th November, 2024. [6] The Court also directed that the Defendant should file its process in response or opposition, as the case may be, by 14th November, 2024. Hearing of the application for an interlocutory order of injunction was scheduled to be heard on 19th November, 2024 at 10:00a.m. [7] The Court must hasten to mention that the Claimants were then legally represented by a law practice under the name and style of Messrs Maganga & Co. [8] Messrs Maganga & Co. never complied with the directions that the Court had issued on 4th November, 2024. No reason was communicated to the Court for such failure to comply with the said directions. [9] On 19th November, 2024 Advocate Mr. Benedictus Chitsakamire appeared on brief from Messrs Maganga & Co. and sought an adjournment of the hearing of the application for an interlocutory order of injunction apparently because the 3rd Claimant, Mr. Clement Mwakatundu, did not want to continue with the application and the action herein as a whole. [10] Advocate Mr. Benedictus Chitsakamire prayed to the Court that it should give fresh directions so that the court process could be amended to remove the 3rd Claimant, Mr. Clement Mwakatundu, from the action. [11] Considering the date when the Court issued the directions on 4th November, 2024 and the date of the hearing of the application for an interlocutory order of injunction on 19th November, 2024, the Court was of the firm view that Messrs Maganga & Co. had ample time within which to do the needful. [12] Why they did not use that time to make the application to amend the court process to remove the 3rd Claimant, Mr. Clement Mwakatundu, from the action as they claimed, and also serve them on the Defendant as directed by the Court remains a mystery. [13] As a result, the Court declined to postpone the matter and to issue fresh directions as prayed for by Advocate Mr. Benedictus Chitsakamire as it became clear that Messrs Maganga & Co. were not serious to prosecute the application for an interlocutory order of injunction. [14] The Court therefore proceeded to dismiss the application for the interlocutory order of injunction with liberty to have it restored to the cause list on good cause being shown why Messrs Maganga & Co. could not comply with the directions of the Court issued on 4th November, 2024. [15] Two months and 11 days later, on 30th January, 2025 the Claimants brought an application to have the application for an interlocutory order of injunction restored to the cause list. [16] The application for restoration to the cause list was taken out under Order 2, rules 3 and 4 of the Courts (High Court) (Civil Procedure) Rules. [17] In his sworn statement in support of the application for restoration of the application to the cause list, the Claimants deponed that they were not aware that Messrs Maganga & Co. had failed to comply with the directions issued by the Court on 4th November, 2024. [18] They further deponed that upon the application being dismissed and, in an effort, to hide the dismissal of the application from them, Messrs Maganga & Co. commenced a fresh action at the High Court of Malawi, Lilongwe District Registry, with an explanation to the Claimants that the Blantyre matter had been transferred to Lilongwe. [19] Unfortunately for the Claimants, the Lilongwe matter was also dismissed on account of the existence of the Blantyre matter as what had been dismissed was the application for an interlocutory order of an injunction and not the action itself. [20] The Claimants deposed that the dismissal of the application for an interlocutory order of injunction was not due to their fault but that of their legal practitioners in failing to comply with the directions of the Court issued on 4th November, 2024. [21] The Claimants further deponed that the only remedy available to them was to seek the indulgence of the Court for restoration of the application to the cause list and that the application had been made within a reasonable time as they only became aware of the true facts towards the end of December, 2024 and no fresh step had been taken in the proceedings. [22] On 7th February, 2025 this Court granted the prayer of the Claimants for the restoration of their application for an interlocutory order of injunction to the cause list. [23] Subsequently, the hearing of the application for an interlocutory order of injunction was set down for hearing on 7th April, 2025. [24] On 3rd April, 2025 the Defendant filed an application to strike out the claim in its entirety on the ground that the summons and the claim endorsed therein were irregular and ineffectual. [25] On 7th April, 2025 minutes before the hearing, the Claimant filed an application to renew the summons and declare its service on the Defendant effectual. [26] This is now the ruling of the Court on the application by the Defendant to strike out the claim in its entirety and also the application by the Claimants for renewal of the summons and declaration that its service on the Defendant is effectual. Issues for Determination [27] There are two issues to be determined by the Court at this stage. 27.1 First, whether or not the Court should strike out the summons and the claim endorsed therein by the Claimant as prayed for by the Defendant? 27.2 Second, whether or not the Court should grant the application by the Claimants for renewal of the summons and declare its service on the Defendant to be effectual? The Defendant’s Case [28] On 4th November, 2024, the Registrar of the High Court issued the summons in this matter. [29] The summons was served on the Defendant on 19th March, 2025 at 08:30 hours, a period of four months and 16 days from the date when it was issued and sealed by the Registrar. [30] In terms of the rules of procedure of the Court, the summons was supposed to be served on the Defendant by 3rd February, 2025. [31] There is no order of the Court renewing the summons or extending the time for service of the summons. [32] Further, the Defendant was not served with any notice of change of legal practitioners or any order discharging the legal representatives who filed the summons on behalf of the Claimants. [33] The Defendant has not taken any fresh step in the proceedings since noting the irregularity and thus the application for setting aside the claim is competently before the Court. [34] The summons having been served out of time without renewal, is ineffectual and cannot support any interlocutory applications, including the applications for injunctions and supplementary injunction rendering the entire claim defective and an abuse of the court process. [35] The Defendant thus prays that the Court grants its application striking out the claim in its entirety with costs. The Claimants’ Case [36] The Claimants did not file any process in response or opposition to the Defendant’s application to have the claim struck out with costs. [37] Instead, the Claimants brought their own application, filed on the date of the hearing on 7th April, 2025 to have the summons renewed and declare its service on the Defendant effectual. [38] The Claimants’ Advocate Mr. Clement Masauko Mwala depones in his sworn statement in support of the application for renewal of the summons and declaration of the service of the summons on the Defendant to be effective that having taken over the file, they were not aware that the summons had not been served on the Defendant. [39] He deposes that he only became aware that the summons had not been served on the Defendant on 4th April, 2025 from the Defendant’s application to have the claim struck out with costs. [40] Since he became aware of the irregularity, he had not taken any fresh step in the proceedings. [41] The Claimants admit that they failed to comply with the rules in that the summons was served after it had expired and without it being renewed by an order of the Court. [42] That it will be fair that the Court renews the summons herein and cures the irregularity of serving it without being renewed and declares the service on the Defendant effectual. The Law [43] Order 2 of the Courts (High Court) (Civil Procedure) Rules is important in the resolution of this matter. It provides as follows: 1. The failure to comply with these Rules or a direction of the Court shall be an irregularity. 2. Notwithstanding rule 1, an irregularity in a proceeding, or a document, or a step taken, or order made in a proceeding, shall not render a proceeding, document, step taken or order a nullity. 3. Where there has been a failure to comply with these Rules or a direction of the Court, the Court may- (a) set aside all or part of the proceeding; (b) set aside a step taken in the proceeding; (c) declare a document or a step taken to be ineffectual; (d) declare a document or a step taken to be effectual; (e) make an order as to costs; or (f) make any order that the Court may deem fit. 4. An application for an order under rule 3 shall- (a) be made within a reasonable time and before the party making the application takes a fresh step in the proceeding after becoming aware of the irregularity; and (b) sets out details of the failure to comply with these Rules or a direction of the Court. [44] Order 7, rule 25 of the Courts (High Court) (Civil Procedure) Rules provides as follows: (1) A summons shall be served within 3 months of the date endorsed by the Registrar under Order 5 rule 4. (2) Where a summons is not served within 3 months of the date endorsed by the Registrar under Order 5 rule 4- (a) the claimant may apply to the Court to have the claim renewed; and (b) where the claimant does not apply for renewal, the Summons ceases to be of any effect. [45] The Court is enjoined to give effect to the overriding objective of the Courts (High Court) (Civil Procedure) Rules whenever it exercises any power conferred upon it by these Rules or whenever it interprets any written law, rules and regulations.1 [46] In Utawaleza Beverages Company Ltd -vs- Twizza (Proprietary) Limited2 the defendant took out an application raising an objection to the hearing of the claimant’s application for an order of the Court authorizing the claimant to destroy defunct goods it had imported from the defendant under an import and distributorship agreement. [47] The defendant contended that the claimant’s application was irregular because it was premised on a summons that was ineffective since it was served after the prescribed period. 1 See Order 1, rule 5 (2) of the Courts (High Court) (Civil Procedure) Rules. 2 Commercial Cause Number 353 of 2019 (High Court of Malawi) (Blantyre Registry) (Commercial Division) (Unreported). [48] The summons had not been renewed by an order of the Court at the time it was served on the defendant. The defendant prayed to the Court for the dismissal of the action and that the claimant be condemned in costs. [49] The High Court (Katsala, J sitting, as he then was) made a number of pronouncements that are relevant to the resolution of this matter. One such is on the effect of the failure to serve a summons within its validity period. He put it thus: Where the summons is not served within the 3 months of issue it must be renewed before it can be served. And where it is not so renewed the summons ceases to be of any effect (Order 7, rule 25 (2). May be the question can be what does the rule mean by “the summons ceases to be of any effect”? In my judgment, it simply means that the summons loses its authority as a court document. That is, it stops being a document embodying the Court’s authority. All the demands, requirements, prescriptions, commands, etc. made therein cease to have any legal implications or effect. It is devoid of any legal power and/or authority. It is as of no use, authority or power as any other piece of paper you may pick on the streets. [Emphasis supplied] [50] On the question whether such a summons can be cured under Order 2 of the Courts (High Court) (Civil Procedure) Rules, the Court held that the only answer it could find was in Order 2, rule 3. That is, an irregularity makes a proceeding, or a document, or a step taken, or order made in a proceeding amenable to the orders or declarations listed in Order 2, rule 3. [51] The Court proceeded to dismiss the action with costs to the defendant as the irregularity was such that it could not be cured. [52] Similarly, in Madalitso Kanjere -vs- Bipin Patel & Fwasani Chizizi3 the defendants prayed to the Court to strike out the summons and the application for an interlocutory order of injunction for being irregular under Order 7, rule 1 (h) of the Courts (High Court) (Civil Procedure) Rules. The summons had been signed by a firm of legal practitioners, “Churchill & Norris”. [53] The High Court (Msiska, J sitting) held that there was merit in the request that the summons be struck out for being invalid or a nullity on the ground that it was not signed by a legal practitioner. That was an irregularity that could not be remedied under Order 2 of the Courts (High Court) (Civil Procedure) Rules. The summons was found to be fundamentally defective and was struck out and all processes that were based on that summons likewise fell away. Application of the Law to the Facts [54] There are at least two similarities between the Utawaleza decision and the present matter. [55] First, in the instant case, the summons was also served on the defendant outside the 3 months validity period prescribed under Order 7, rule 25 of the Courts (High Court) (Civil Procedure) Rules. The summons was served after four months and 16 days long after it had ceased to have any effect. [56] Second, just as it was in the Utawaleza decision, in the present matter, the summons was served on the defendant without it being renewed by an order 3 Civil Cause No. 37 of 2023 (High Court of Malawi) (Lilongwe District Registry) (Civil Division) (Unreported). of the Court as is required by Order 7, rule 25 (2) (a) of the Courts (High Court) (Civil Procedure) Rules. [57] The Claimants herein brought their application to renew the summons and declare its service on the Defendant effectual on the date of the hearing of their application for an interlocutory order of injunction having been prompted by the Defendant’s application to strike out the claim on that very same basis. [58] The application by the Claimants was very strange to say the least. Our legal system is adversarial in nature. A party cannot bring an application that has the effect of making amends of its shortfalls or defects with the aim of preempting the opposite or other party’s application. If that were so, there would be no end to litigation, as one would simply bring an application that would cure any defects and preempt the other party’s application. [59] In the present matter, the defendant has not fouled the provisions of Order 2, rule 4 of the Courts (High Court) (Civil Procedure) Rules from the time that it discovered the irregularities in this matter. It took no fresh step in the proceeding other than taking out the application to strike out the Claimants’ claim. [60] The Court therefore finds that the summons herein had ceased to have any effect when it was served on the Defendant on 19th March, 2025 at 08:30 hours as its validity period had long expired. Further, the very fact of serving a summons whose validity period had expired was in itself an irregularity. Consequently, both the summons and its service on the Defendant are hereby declared to be ineffectual. There cannot simply be something out of nothing. [61] Furthermore, the Court also finds that Advocate Mr. Clement Masauko Mwala filed with the Court a notice of change of legal practitioners on 30th January, 2025 but never served it on the Defendant as contended by Advocate Mr. Abison Chikondi Chitukula and as required by Order 33, rule 1 (2) of the Courts (High Court) (Civil Procedure) Rules. [62] These irregularities make a proceeding, or a document, or a step taken, or order made in a proceeding to be amenable to the orders listed in Order 2, rule 3. As we have seen in both the Utawaleza and Kanjere decisions, irregularities that touch on the validity of a summons and a claim could not be cured by Order 2 of the Courts (High Court) (Civil Procedure) Rules. It cannot be different in the present matter. [63] In the final analysis, the Court grants the Defendant’s prayer and strikes out the Claimants’ summons and the entire claim pursuant to Order 2, rule 3 (f) of the Courts (High Court) (Civil Procedure) Rules as it is based on a summons that had ceased to have any effect as its validity period had long expired and the claim was not renewed by an order of the Court before it was served on the Defendant. [64] The summons having expired it could not be renewed at this late stage in the proceedings simply because the Defendant had taken out an application to have the entire claim struck out based on the expired summons. In any event, the Claimants never opposed the Defendant’s application to have the claim struck out as it were. [65] More importantly, the adversarial nature of our legal system means that the Claimants could not take out an application that had the effect of making amends of their shortfalls or defects aimed at preempting the Defendant’s application to have the summons and the claim struck out. [66] The application for an interlocutory order of injunction by the Claimants also falls away as it has no legs to stand on, the summons having been found to have ceased to have any effect. It is as good as having no action before the Court. As such, no interlocutory order of injunction may be granted under such circumstances.4 [67] Costs are for the Defendant. They shall be assessed by the Registrar of the Court in default of any agreement by the parties themselves. It is so ordered. [68] Made in Chambers this 9th day of May, 2025 at Blantyre, Malawi. JUDGE M. D. MAMBULASA 4 n3 above. See also Anglican Diocese of Upper Shire et al -vs- Church of Province of Central Africa et al, Civil Cause No. 328 of 2022 (High Court of Malawi) (Principal Registry) (Civil Division) (Unreported). 16