Massona v Nkhoma & three Others (Civil Cause 1393 of 2001) [2005] MWHC 132 (18 May 2005)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 1393 OF 2001 F.q,a co URT LIBRARY BETWEEN: BT MASSOINA 050 s 5 v i i s i s s st sie oo 616 6 5 3 555 55 5.0, PLAINTIFF - AND - ANNA NKHOMA.........ooiiiiiiiiiiiieciiicciieeee 1ST DEFENDANT CHRISTOPHER KASEMA....c.c.ci0ismu5si5s0s 555550 2N DEFENDANT JESSIE KAZINGA MKANDAWIRE.................. 3R> DEFENDANT THE NEW BUILDING SOCIETY .......ocvvuvennnnee 4™ DEFENDANT CORAM: HON JUSTICE M. C. C. MKANDAWIRE _ Mr Chagwamnjira, of Counsel for the Defendants Nsomba, Official Interpreter ,of Counsel for the Plaintiff RULING The This matter has a very long but sad history. plaintiff, on the 29t of May, 2001, took out an originating summons seeking out a number of declarations. The record shows that whilst waiting for the hearing of the originating For more than summons the plaintiff obtained an injunction. As can be seen three years, the matter could not be heard. from the order of Kapanda J which he delivered in October, 2004, the injunction was discharged and the matter on the Reasons for the originating summons was also dismissed. discharge and dismissal are well laid down in that ruling. After the order of the Learned Judge, the plaintiffs’ counsel filed in summons for Rehearing /Restoration of the originating summons. This was filed on the 6t of January, 2005. The application was heard on the 6t of January, 2005, whereby the restoration of the originating Kamwambe J. opted for summons to the list and further ordered that the injunction which had hertherto lapsed, be restored for the next three months. It would appear that the file later on went missing at the Civil Registry. Counsel for the plaintiff therefore was unable to have a perfected order that he obtained on the 6t of file in an January, 2005. application requesting the Court that the matter be proceeded with as if the matter had been commenced by way of a writ of summons so as to enable the parties to be heard viva voce. On the 5th of April, 2005, plaintiff’s counsel persuaded the civil registry to open a temporary file which they did. On the 7% of Apri, 2005, the court extended the interlocutory injunction of the 6t of January, 2005. Counsel also found it difficult to The matter therefore came before me for an application for continuation of proceedings as if matter began by writ of There is an affidavit in support of this application summons. deponed by Counsel Joster Mwazani Chisale. There is also a supplementary affidavit in support of this application deponed by the same counsel. Counsel for the 4th dependant Mr Dick Chagwamnjira also filed in an affidavit in opposition. When the matter herein came for hearing in my Chambers on the 4t of May, 2005, the I therefore ordered that we proceed in their absence. plaintiff's counsel was not present. The plaintiff’s affidavit in support of this application discloses that the plaintiff’s action is based on fraud; namely the fraudulent and unauthorized transfer of the plaintiff’s title No. Nyambadwe 791 by his daughter, Anna interest in Nkhoma the first defendant. The plaintiff therefore says that being an action on fraud, the action ought to have commenced In addition, by originating summons in the very first place. the the plaintiff says that there are evidence requiring the parties to be heard viva voce. of conflicts in lot a They also argue that after The 4t defendant through their counsel have vehemently opposed this application. In the first place, they have referred this Court to the inordinate delays that this case has suffered For example, on 6 occasions, the at the hands of the plaintiff. plaintiff failed to attend hearing of the originating summons. This led to the court dismissing the matter in September, the matter herein was 2004. restored, the plaintiff did not prosecute the matter until the day the restoration order was to expire that is to say on the 5t day of April, 2005. That instead of prosecuting the originating summons as per the order of the Court, the plaintiff made the present application to convert the action from originating summons to writ of summons action. In their considered view, the 4% defend has already suffered a lot of injustice due to failure by the plaintiff to prosecute the matter for a period exceeding three be oppressive at this stage to convert this matter to writ action also taking into account the plaintiff’s in action and delayed prosecution. Finally, the 4t defendant submitted that an action based on fraud in the first instance but commenced by originating summons can not be converted into a writ action Under Order 28 Rule 8 of the rules of the Supreme Court unless the allegation of fraud only arose in the Course of the action. In the instance case, the plaintiff were aware of the issue of fraud from the word go on the 29t of may, 2001 as can be seen on the originating summons. They therefore pray to this court that this matter be dismissed with costs. It would therefore half years. and The basis of this application is Order 28 Rule 8 of Rules of the Supreme Court as read with Order 5 Rule 2. Order 28 Rule 8 provides that in any matter begun by originating summons, where it appears to the court that it should be continued as proceedings to continue as if the matter had been so begun. the court may order the if begun by writ, the above Orders and my I have paid attention to understanding is that Order 28 r 8 Rules of the Supreme Court is that if an allegation of fraud exists at the very beginning of an action, the appropriate way of instituting the If an originating summons was used instead, action is by writ. 8 Rules Supreme one can not have recourse to Order 28 r If the allegation of fraud arises in the course of the Court. proceedings, one could easily result to Order 28 r 8 Rules of the Supreme Court. Looking at the facts of this case, it is very clear that the originating summons which did institute the present case on 20th May, 2001 made an allegation of fraud. Paragraph (a) of the originating summons reads: “By this summons which is issued on the application of the plaintiff, Mr Erenesto Jackson Massona, seeks the following declaration from this court namely: (a) a declaration that the purported sale of Title Number Nyambadwe - 791 to Jessie Kazinga Mkandawire and the subsequent sale to Mrs M. A. Phiri be set aside on the ground that the same have been done fraudulently”. This clearly shows that the plaintiff was aware of the allegation of fraud and it was misconceived at the outset that the proceedings were commenced by originating summons. The plaintiff should have followed the spirit of I do not Order 5 rule 5 of Rules of the Supreme Court. think that the plaintiff can now result to order 28 Rule 8 The matter is more RSC in order to rectify the blunder. than technical. The court has also looked at the conduct of the In the first place, since the matter plaintiff in this case. herein started in 2001, the plaintiff failed to attend court the dismissal of the on occasions. That led to plaintiff’s counsel did summons. After the matter herein was restored, there, was again very little activity from the plaintiff, when this application was set down for hearing on the 4t of April not even bother to 2005, the appear in order to personally prosecute the application. plaintiff’s do That said, I accordingly dismiss it with costs to the 4t application. the matter herein 1 therefore order that defendant. should be given the urgency that it deserves so that the issues should come to finality. not find any merit in the I MADE this 18t day of May, 2005 at Blantyre.