Mwitha v Malawi Bureau of Standards (Civil Cause 1540 of 1993) [1993] MWHCCiv 22 (24 September 1993)
The application to restore action was dismissed because the plaintiff failed to amend the defective originating summons and did not comply with mandatory procedural requirements.
Source-derived case information.
- Citation
- [1993] MWHCCiv 22
- Parties
- Plaintiff: Lab Mwitha; Defendant: Malawi Bureau of Standards
- Court
- High Court of Malawi Civil Division
- Jurisdiction
- Malawi
- Case Number
- Civil Cause 1540 of 1993
- Procedural Posture
- Civil Cause / Ruling on Application to Restore Action
- Outcome
- Application dismissed with costs.
- Legal Topics
- Restoration of Action, Defective Pleadings, Compliance With Procedural Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lab Mwitha
Plaintiff
Malawi Bureau of Standards
Defendant
Procedural Posture
Civil Cause / Ruling on Application to Restore Action
Legal Issues
- 1 Whether the plaintiff's application to restore action complied with procedural rules
- 2 Whether defective pleadings can be restored
Ratio Decidendi
The application to restore action was dismissed because the plaintiff failed to amend the defective originating summons and did not comply with mandatory procedural requirements.
Court Disposition
Application dismissed with costs.
Orders
- Plaintiff may restore the action or commence a fresh one in accordance with prescribed law and procedure.
Full Case Text
Judgment text and source record
1 paragraphs
IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NUMBER 1540 OF 1993 BETWEEN: LAB MWITHA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . PLAINTIFF AND MALAWI BUREAU OF STANDARDS. . . . . . . . . . . . . . . . . . . DEFENDANT CORAM: Mba lame J Chisambiro Counsel for the Plaintiff K a 1 i w o Counsel for the Defendant RULING By a ruling of this court dated the 19th of March, 1993, an originating summons for various declarations filed by the plaintiff was dismissed because the summons did not comply with orders 7 and 28 of the Rules of the Supreme Court. The plaintiff, on 5th May, 1 993 purported to restore the action by filing a document entitled "Application to Restore Action". Nothing was done to amend the format of the originating summons which the Court had previously rejected and no acknowledgement of service form was attached to it as is required by order 7 Rule 2 of the Rules of the Supreme Court which clearly stipulates that "Every originating summons (other than ex parte summons ) shall be in form No. 8 or if so authorised or required in form No. 10 in Appendix A and every ex parte originating summons shall be in form No 11 in Appendix A." Sadly, the plaintiff, as I have alreadyobserved has done nothing to reactify or put his pleadings in line with these rules. The Court cannot restore defective pleadings. The ommissions on the part of the plaintiff is of a paramount nature and cannot be allowed in that form. I accordingly dismiss the 2/. . - 2 - application with costs. The plaintiff is at liberty to restore the action or commence a fresh one guided by the law and procedure prescribed. Made in Chambers this 24th day of September, 1993 at Blantyre Mba1ame JUDGE