Kalua and Another v Electricity Supply Corporation of Malawi (Civil Cause 58 of 2020) [2023] MWHCCiv 27 (2 May 2023)

IN THE HIGH COURT OF MALAWI MZUZU DISTRICT REGISTRY CIVIL DIVISION CIVIL CAUSE NO. 58 OF 2020 BETWEEN: BEAUTY KALUA AND JABULANI KALUA (Administrators of the Estate of STANLEY KALUA .........nccetssxanexrnieqer eupewcesesnse onsenadl bea EREENMMEN ENO eOwOn CLAIMANTS ELECTRICITY SUPPLY CORPORATION OF MALAWI...............cccseecssneeeveee DEFENDANT CORAM: Honourable Justice T. R. Ligowe Mr. D. Lameck, Counsel for the Claimant Counsel for the Defendant, Absent Mr. K. Thadzi, Senior Court Clerk Mrs. J. N. Chirwa, Senior Court Reporter Ligowe J, RULING Is Every legal practitioner practicing at this court is well aware how precious court's time is, such that they would not want to miss court for no apparent reason. 2: There are a lot of cases awaiting dates for mediation as well as trial. When a date has been given, there must be a good reason for a party to fail to attend court. In this case, mediation was set to take place on 224 February 2022 at 2:00 p.m. Incidentally, the notice of mediation had been taken out by Messrs Lameck and Company, Legal Practitioner for the claimant. No party came to attend to the mediation on the date set and this court dismissed the action for non-attendance. As at that date, the record shows the claimant had not filed his statement of issues as is required by the rules of procedure. But the defendant had filed theirs on 15th of November 2021, meaning that they had been duly served with the notice of mediation. In explaining their failure to attend, counsel for the claimant says, they had been informed verbally by the Civil Registry at this court that the lawyers should ignore the cause list of cases taking place before this court at that period as it had some mistakes on dates that needed to be rectified, one of which was the date of the mediation for this case. So, counsel did not attend to the mediation, and the court proceeded in their absence. It is important to mention here, that it is good practice and it is commendable for purposes of accountability and transparency, for the court to issue out schedules of cases and the dates and times when the cases will take place in court. This however does not take the place of notices that are required by the rules to be given to the parties to the cases about when and where their cases will take place in court. In as far as mediations are concerned, the rules of practice require in Order 13 rule 3(2) that the Judge should within two days from the time the statement of case is deemed to be closed, issue a notice in Form 14 to the 2 10. Tl, 12. 13. 14. 1S. parties advising them on the date of the mediation session. This was done in this case and the date was 224 February 2022 at 2:00p.m. As already noted, both sides of the case were aware of it. In the scheme of things, between this notice and the cause list, counsel mentions in his sworn statement, which because of some mistakes had to be changed, the notice has more legal significance. In fact, the cause list is made out of the notices given for the cases taking place before a Judge over a specific period. The notice is a matter of mandate and is served on all parties fo the case. The cause list is not specifically for the parties but for the general public, and even if it were not issued, it would nof have any effect on the proceedings in court, On the other hand, where there is no notice of the hearing given to the parties or any of them, the matter normally does not proceed until it is given. | have read through counsel's sworn statement in support of the application, | don’t even find anything about whether the cause list was then rectified and what might have happened about this case in that cause list. In the end, | do not find that counsel has given a reasonable explanation for failure to atfend fo the mediation of this case on 224 February 2022, enough to move me fo restore the matter. So, the application is dismissed. Made in Chambers this 2"4 day of May 2023. CO BRoHgGWe_ JUDGES