Malawi Law Society v Registrar of Financial Institutions (MSCA Civil Appeal 9 of 2021) [2022] MWHC 201 (10 November 2022)

IN THE MALAWI SUPREME COURT OF APPEAL SITTING AT BLANTYRE MSCA CIVIL APPEAL CASE NO. 9 OF 2021 (Being High Court, Principal Registry, Judicial Review Cause No 68 of 2014) BETWEEN WLALA WI LAW SOCIE VY. ones sas snes cca vot saeonscewns cxenneanenies sass APPELLANT AND REGISTRAR OF FINANCIAL ENS TTT OVO SS ecxs oa ens vase sas 080 ¢oeeraseweamaawmnmc nnd 044844 prenes RESPONDENT INSURANCE ASSOCIATION OF MALAWI .......... INTERESTED PARTY CORAM: HON. JUSTICE L. P. CHIKOPA SC, J. A. HON. JUSTICE F. E. KAPANDA SC, J. A. HON. JUSTICE J. KATSALA J. A. HON. JUSTICE LC. KAMANGA J. A. HON. JUSTICE D. MADISE J. A. HON. JUSTICE R. MBVUNDULA J. A. HON. JUSTICE D. nyaKAUNDA KAMANGA J. A. Msisha SC, Mpaka, Counsel for the Appellant Nkhono SC, Counsel for the Respondent Mmeta, Counsel for the Interested Party Chinkono, Minikwa, Recording Officers Namagonya, Muntinti, Reporters RULING Mbvundula JA: In 2014 the respondent promulgated a Directive known as the Insurance [Claims Management] Directive which the appellant was aggrieved with. Consequently the appellant instituted judicial review proceedings in the High Court questioning certain aspects of the Directive. The High Court dismissed the judicial review application against which the appellant appealed in this Court. The appeal was set down for hearing on 14" July 2022 whereat Counsel for the appellant did not show up with no prior communication to this Court explaining the absence. This Court dismissed the appeal for non-attendance by Counsel for the appellant. ‘The appellant then filed an application to re-enter the appeal citing Order III rule 2) (2) and Order III rule 19 of the Supreme Court of Appeal Rules as read with CDR Rule 52.30 and section 7 of the Supreme Court of Appeal Act. The hearing of the application to re-enter the appeal took place on 10" November 2022, and after considering the parties’ respective submissions this Court unanimously determined that the application was untenable and proceeded to dismiss it, reserving, however, its reasoned Ruling to a later date. This is the Ruling. The application was supported by an affidavit sworn by Counsel Mpaka, who was to represent the appellant at the hearing of the appeal. He stated therein that he failec to appear on time for the appeal because, unknown to him, his wrist watch was behind time by some minutes and that he only realized this when he heard the correct time from his car radio when he was roughly halfway between his office in Blantyre and the Court at Chichiri. He deposed that upon realizing that he would be late he called a court clerk at the Supreme Court Registry who, according to his affidavit, informed him that the Justices of Appeal were entering the courtroom. The clerk allegedly spoken to by Counsel remains unidentified and has therefore not independently confirmed Counsel’s claim. Counsel further stated that he also called Senior Counsel Nkhono, representing the respondent, and that Senior Counse’ missed his call but called later to inform him that the case had been dismissed. In court, however, Senior Counsel Nkhono expressed ignorance of the reasons why Counsel Mpaka was absent as. according to him, he had had no communication from Counsel Mpaka. Counsel Mpaka urged this Court to allow the application to re-enter the appeai as the matter on appeal “is of great importance to the administration of justice anc business regulation and has been the subject of long drawn out and intensive discussion amongst the legal profession and the insurance industry and their regulators including the Malawi Judiciary, the Malawi Law Society, the Registrar of Financial Institutions and the Insurance Association of Malawi.” Counsel averrec that this appeal presented an opportunity through which the final Court of appeal in this country can offer judicial guidance on administration of justice and regulation of the business environment in the insurance sector and therefore that the Cour should exercise its discretion to re-enter the appeal and dispose of it on the merits. For the respondent was filed an affidavit sworn by Senior Counsel Nkhono, Counse. Nkhono saw no good reason for the appellant’s failure to attend as, in his view, Counsel Mpaka would have had other devices, apart from his wrist watch, suca as his phone and his laptop to tell the correct time. That Counsel Mpaka called Senior Counsel is in contrast to Senior Counsel Nkhono’s account in court that he was surprised that counsel for the appellant was absent, and that he had had no communication from him. In response to that, Counsel Mpaka stated, in an affidavit in reply, that the only gadget he relied upon to know the time was his wrist watch as he had switched off his phone to avoid disturbances and had not switched on his laptop, the reason being that during the previous two days he had had a long trial 2: the Industrial Relations Court such that he had no time during those two days to prepare himself for the appeal herein, and in light of this he rose early on the morning of the appeal arriving at his office around 4 am whereupon he switched off his phone and did not switch on his laptop hence his singular reliance on his defective wrist watch. Yet, as earlier observed, he claimed to have called the court clerk and Counse! Nkhono from the same phone he claimed to have switched off. There are obvious contradictions here. If he indeed called the court clerk and Counsel Nkhono it mus: follow that his phone was available for him to know the correct time. If it was off ha then it means he neither called the clerk nor Counsel Nkhono. We will not fil) in the gaps on behalf of Counsel. The bottom line, however, is that his account of who transpired does not ring true. at Senior Counsel Nkhono was also of the view that even if the wrist watch was no. telling the correct time Counsel for the Appellant would still have not been on ume as he would not have had enough time to rob, find the right courtroom and be seatec at the bar by 9.00 am. In Mr Nkhono’s estimation, if the wrist watch had beer displaying the correct time Counsel for the appellant would have had only ‘iv: minutes between his time of arrival at the court and the time scheduled for the hearing, so appellant's Counsel would still have been late for the hearing. This poin.. in our view, cannot be faulted. We are of the view that diligent Counsel will not sia: off for a hearing to be just on time. Diligent Counsel will take into accoun unforeseeable events which might delay them on their way to court rather than leav« matters to chance. Counsel should rather wait at the court for their matter to be ca.iec than hope that in the event of their being late the court will shift the time « accommodate their delay. This, as a matter of fact, is why there is allowance for the element of travelling and waiting with respect to bills of costs. Senior Counsel Nkhono invited this Court, when exercising its case managemer discretionary powers, to take into account the full circumstances of this case. It was Senior Counsel’s contention that the circumstances and history of this matte: strongly show that the appellant has shown little interest in pursuing the appeal anc that the incident of 14" July 2022 appeared to demonstrate and underscore a pattern of relative disregard for the appeal, on the part of the appellant. In this regard Senior Counsel brought to the fore the following facts, which the appellant has not disputed, though he sought to justify them. Counsel Nkhono pointed out that the court below having delivered its judgment o: 22" February 2018 the appellant filed its appeal in March 2018 and in the following month obtained a stay of execution of the judgment pending appeal. For a period oF three years thereafter the appellant took no step to prosecute the appeal and that despite the respondent being at liberty to apply to have the appeal dismissed for wan of prosecution, the respondent’s Counsel instead had the record of appeal preparec. filed and served on the appellant, despite this being the duty of the appellant. | ha: notwithstanding, so it was observed, the appellant still took no further ste tc prosecute the appeal, but Counsel for the respondent, with a view to achievine progress in the appeal, proceeded to prepare the respondent’s skeleton arguments on appeal and its list of authorities, and served them on the appellant on 9" July 202) and yet again the appellant took no further step to prosecute the appeal. It was further 4 averred that even after the appellant was served with the Interested Party's skeleton arguments on 25" August 2021 the appellant was not prompted into filing anc fat, serving its skeleton arguments, and that it was only after the appellant was served with a Notice of Hearing earlier scheduled for 17" February 2022 that the appel/ar proceeded to file its Chronology of Events, Skeleton Arguments and Lis: Authorities on 10 February 2022, only seven days before the scheduled hearing. In the view of the respondent, the appellant’s failure to attend Court was nc justifiable and did not rule out lack of diligence on the part of Counsel for ¢ appellant who had consistently shown a pattern of not being interested in pursuing the appeal, perhaps, according to Senior Counsel Nkhono, because of the appellant’ s comfort derived from the fact that the respondent is restrained by the order staying execution of the judgment of the court below. Accordingly, Counsel for ihe respondent expressed the view that it would not be in the interest of justice to re enter the appeal. In his affidavit in reply Counsel Mpaka expressed surprise at the assertions of lac\ of diligence on his part. He argued as follows in his said affidavit. Firstly, that Senior Counsel Nkhono was shown the time displayed by his wris’ watch and noted the mishap that had befallen Counsel for the appellant on 14" Ju). 2022. We have already observed that Counsel ought to be proactive by anticipai unforeseen eventualities. There is no merit in this argument. Secondly, that regarding an earlier adjournment of 19" February 2022, hearing o” the appeal failed because the Court was not quorate as at that time there was ar inadequate number of Justices of Appeal for the Supreme Court of Appeal, hence the adjournment was inevitable. This, unfortunately, does not justify the appellant's failure to have taken the necessary steps towards prosecuting the appeal since the judgment of the court below, of 22" February 2018, Le. four years prior. And it the reason for the delay in filing was that the Court was not quorate one must wor how come he nonetheless filed the necessary documents, albeit only seven days to the scheduled hearing. Thirdly, Counsel Mpaka averred and argued that the whole history narrated in the affidavit of Senior Counsel Nkhono lacked any bearing on the events of 14° Jus 2022 as by then all records necessary for the appellant to present its appeal were on record. Our take is that a pattern is a string of related events and that in the usua course of things all the events must be considered one in relation to the rest, anc no. singularly. In that regard we are more inclined to agree with the respondent tha conduct of the appellant taken in the light of all the events surrounding its hanc. of the appeal herein, including the events of 14° July 2022, demonstrate th: appellant’s general disregard for the timely attainment of justice, more so when the respondent stands restrained by the order of stay granted to the appellant in the cou: below. In the case of RTM Initiative Limited t/a Track v Electricity Supply Corporaticr o, Malawi Limited MSCA Civil Appeal No. 52 of 2019, this Court upheld a decisic: of the High Court dismissing a matter for non-attendance, where Counse! appellant averred that due to heavy traffic, he failed to arrive at the court prem se: at the scheduled time. This Court found that to be an insufficient cause for Counse: < non-attendance. The facts of this case are no different from those in the R7A/ case. There exists no sufficient cause in the present case for Counsel’s failure to attend at the appointed time such that even if under the relevant statutes re-entry of the apoea. was permissible, the application herein would fail for want of sufficient or goo: cause for counsel’s non-attendance much so in view of the appellant’s general ineriic with respect to the appeal. The term “sufficient cause” was considered by the Kenyan Court of Appes! © Wilson Cheboi Yego v Samuel Kipsang Cheboi [2019] eX LR and was accepted be: . the burden placed on a litigant ... to show why a request should | granted or an action excused” and that * F |t is a question of fact in respect 0° which the court has to exercise its discretion in the varied and specia circumstances of each case.” The court then stated that: “Sufficient cause must therefore be rational, plausible, logica! reasonable and truthful. [t should not be an explanation that le a judge’s mind. The explanation should not leave unexplained gaps sequence of events.” The Court also cited a decision of the Court of Appeal in Tanzania as follo ey og ; “The Court of Appeal in Tanzania had this to say on “suf HOUSE Ol ACL Bunju Village Government ft is aiypficull to Hen yy fo define tre meaning of the wor ds “sutficien ft Pe eK Rete Hy ayerrsmbort pays sera seep? fp f be ee age vis edroauifel eeeorue fiPgor is BCHChH 3 CCE Plea MOWEVEr, Tidal fA Words SMoOuUid FECCIVE GF TID é ea pati yw tea piped Pietro es ‘ wapaee J fesotyee sarteo construction in order to advance substantial justice, when non inaction or want of bona fides. is imputed to the appellant” added)” The court further cited the decision of the Supreme Court of India in of Parimal v Veena [2011] 3 SCC 545 where the latter court observed that: "sufficient cause” is an expression which has been used in learec statutes. The meaning of the word “sutficient” is “adequate as much as may be necessary to answer the purpose intended. | ; word "sufficient" embraces no more than that which provides a plati which when the act done suffices to accomplish the purpose intended in Jacts and circumstances existing in a case and duly examined from t point of a reasonable standard of a curious man. In this context. "'s cause" means that party had not acted in a negligent manner or there want of bona fide on its part in view of the facts and circumstances 0} : ¢ or the party cannot be alleged to have been "not acting dili ? exercised judiciously. ' On the facts before us, and in our assessment, Counsel’s account of what caused hi: non-attendance is not convincing. It leaves doubt in our minds as to whether Counse. acted diligently and not negligently by departing for court at the last minute, by leaving matters to chance. There are unexplained gaps in counsel’s account suc) as the irreconcilable account that Counsel’s phone was off yet at the same time mace calls therefrom. This, in the least, coupled with the appellant’s generally indo.ent conduct of the appeal cannot amount to a sufficient cause. The history of this matter clearly points to the fact that the other parties to the case have been prejudicec. b: appellant’s unreasonable delay or failure to prosecute the appeal timely whils: inc order staying execution of the judgment below ties the appellant’s limbs. The provisions of the CPR Rule 52.30 in England relate to the procecure reopening of appeals and, strictly speaking, are not relevant to the disposal o7 th« application before us. So are the provisions of section 7 of the Supreme Cou Appeal Act as well as those of Order HI rule 19 of the Supreme Court of Apoes Rules. Our focus is therefore on Order HI rule 21 of the Supreme Court of Apoe: Rules. Under Order UT rule 21 of the Supreme Court of Appeal Rules the Court may e. ice strike out or dismiss an appeal for non-appearance by the appellant. On 14" 2022 this Court dismissed the appeal for non-appearance by Counsel tor appellant. As earlier mentioned the present application was principally brougn: under Order If rule 21 (2) which provides for appeals that have been struck out. “ also observe that the appellant’s skeleton arguments proceed on the same trajecior In consequence the appellant has wholly proceeded along that erroneous path j-or the beginning to the very end. The appellant’s application, has little, if anythiny. | do with the decision of the Court, dismissing and not striking out the appeal. ¥ therefore find the appellant’s application unhelpful in the appellant’s bid to have ©: appeal re-entered. In his submissions for the appellant, Senior Counsel Msisha urged this court to ao. the application to re-enter the appeal on the basis that there was an explanation © | the appellant’s non-attendance, which he asserted was not disputed by respondent, namely that Counsel appeared late. Senior Counsel also asked this cour to take into account that on the hearing date the appellant had all necessar, documents in place. He submitted that under the provisions of Order Il rule 2 the Supreme Court of Appeal Rules reinstatement can be done on terms as to cos: or otherwise as the Court deems fit. Further, the point was advanced that there was a genuine issue to be determined that warranted the attention of this Court, anc no injury would be occasioned to the other side, the Regulator or the | Association. In response, on behalf of the respondent, Senior Counsel Nkhono singled out the that Order III rule 21 (2) of the Supreme Court of Appeal Rules empowers this ¢ to re-enter an appeal which has been struck out “if the court thinks fit”. It was »: submission that the Court must look at all the circumstances and the history o case and as per the respondent's affidavit in opposition the vison of the case, particular, the conduct of the appellant’s Counsel, did not justify the re-entry oF appeal. Unlike Counsel for the appellant, Counsel for the respondent did reckon that t. appeal was dismissed and not struck out but was of the view that in either case court has jurisdiction to re-enter the appeal if it deems it fit. He was of the view > the practical effect is one and that this court has inherent power to re-enter the appea.. Counsel for the Interested Party, Mr Mmeta, shared the respondent's position . relates to the conduct of Counsel for the appellant. Counsel Mmeta invited this C to look at the identity of the appellant as a regulatory body of the legal pro Malawi and to judge whether its conduct did warrant the exercise of the Cour discretion in its favour as having lived by example. Regarding the effect of Order II] rule 21 (2) of the Supreme Court of Appea! counsel Mmeta submitted that the consequences of dismissal is that the mouc: cannot be re-entered, that the effect is the same as where the appeal has | dismissed after a full hearing. Further, Counsel Mmeta pointed out the fact that «> application to re-enter the appeal did not state the grounds, but that the same on: appeared in the affidavits. On the suggestion that this Court may allow a re-entry of an appeal that has pee dismissed regardless of the fact that Order HI rule 21 (2) of the Supmme £ Cow Appeal Rules makes no provision therefor counsel expressed the opinion that « matter dismissed on a technicality is as good (or as bad) as one dismissed on ‘he merits and is incapable of revival. We will now consider the matter of the court’s inherent jurisdiction, which Cou se Nkhono said we could exercise in this case. Lord Bingham of Cornhill in Grobbelaar v News Group Newspapers Ltd (2002 WLR 3024 at 3037 said the following: “In his article "The Inherent Jurisdiction of the Court" (1970) 23 ¢i Legal Problems 23, Jacob was largely concerned with the inherent jurisdic io» 10 3 of the High Court, and the procedural aspects of that jurisdiction. propounded (page 51) a definition which has never perhaps been bettere< ..the inherent jurisdiction of the court may be defined as be reserve or fund of powers, a residual source of powers, wnich ey ( may draw upon as necessary whenever it is just or equitable to do so and in particular to ensure the observance of the due process of prevent improper vexation or oppression, to do justice between parties and to secure a fair trial between them”.” This definition was adopted in the local case of Bottoman and another v Kei Principal Registry Miscellaneous Criminal Application No. 14 of 2013. 2 MWHC 44]. In the South African case Oosthuizen v Road Accident Fund 2011 (4) SA 3) 6S in discussing the inherent jurisdiction of the court, it was stated as follows: “1 13] Our courts derive their power from the Constitution and the statutes regulate them. Historically the supreme court (now the high court), in acd vor to the powers it enjoyed in terms of statute, has always had additional! to regulate its own process in the interests of justice. This was described a. a exercise of its inherent jurisdiction. That power is now enshrined ins 17- the Constitution... [14] Jerold Taitz succinctly describes the inherent jurisdiction of the ig court as follows in his book The Inherent Jurisdiction of the Court (1985) pp 8-9: ‘,.. This latter jurisdiction should be seen as those (unwritten) powcr ancillary to its common law and statutory powers, without which court would be unable to act in accordance with justice anc goo: reason. The inherent powers of the court are quite separate and ¢ from its common law and its statutory powers, eg in the exercise o. inherent jurisdiction the Court may regulate its own proce. independently of the Rules of Court.’ ii [17] A court’s inherent power to regulate its own process is not unlimit does not extend to the assumption of jurisdiction which it does not otrer have. In this regard see National Union of Metal Workers of South Ari others v Fry's Metal (Pty) Ltd where this Court stated that: “While it is true that this Court’s inherent power to protect a its OWn process is not unlimited — it does not, for fates “exter: the assumption of jurisdiction not conferred upon it by statute” [18]... Moreover, a high court may only act in respect of matters ove it already has jurisdiction. A high court can therefore not stray beyonc compass of s 173 by assuming powers it does not have. [19] Courts have exercised their inherent jurisdiction when justice req them to do so. In this regard the following dictum by Botha J in Components and Rotomoulding South Africa (Pty) Lid v Coucourak:: another should be noted. ‘{ would sound a word of caution generally in regard to the exercis : the Court’s inherent power to regulate procedure. Obviously, | tho: such inherent power will not be exercised as a matter of course. Rules are there to regulate the practice and procedure of the Cou general terms and strong grounds would have to be advanced. in view, to persuade the Court to act outside the powers provicec specifically in the Rules. Its inherent power, in other words something that will be exercised sparingly. As has been said in the > s: quoted earlier, ] think that the Court will exercise an inhe jurisdiction whenever justice requires that it should do so. | shal attempt a definition of the concept of justice in this context. | simply say that, as | see the position, the Court will only come assistance of an applicant outside the provisions of the Rules wren o> Court can be satisfied that justice cannot be properly done unless ro) is granted to the applicant.’” a This Court (Chipeta SC, JA) in Parliamentary Service Commission v SJR Cate Services [2018] MLR 198 proceeded likewise after being called upon to apols 12 YORAP A default provisions of the Civil Procedure Rules 1998 of England ostensib gaps apparent in local legislation. He stated (p 220 par /): “As for issues promoting the overriding objective of the court, as provi ided the Civil Procedure Rules 1998, these to me, should not be taking prior: what local legislation says ... It is local law that should instead i take ey se oy and only when it has fallen short of making provision for a situation sh resort be had to the default provisions contained in the Civil Procedure & 1998 to fill gaps in local law.” He further stated (p 221, par ¢) that the jurisdiction of the Court should not be c upon just to serve the convenience of a party but to serve the interests of justice. specific words he used are: “Now, [ tend to think that when the jurisdiction of this court is being « upon just to serve the convenience of a party, and not necessarily to serve io< interests of justice, this court should, on the spot, put its foot down oe S rules are rules and they must be obeyed.” That a court cannot exercise jurisdiction not conferred upon it by siaiu exemplified by another South African case, Mochy Nedtravel (Pty; Lid American Express Travel Service (329/95) (1996] ZASCA 2; 1996 (3) SA | in which the court was urged to use its inherent power to grant a party a righ: « appeal which the statute, the Insolvency Act, did not give to it. In response to submission the court observed that its inherent power did not extend to assumption of jurisdiction it otherwise did not have under the Act. We make the point here that we are not and would not be persuaded to exercise on jurisdiction outside the Rules merely to assist a party who has proceedec | indiligent, tardy, unconscionable and inequitable manner such as the preser appellant who appears to have taken advantage of the order staying the execution o the judgment below to the disadvantage of the other parties to the case. ift to be, the interests of justice would not be properly served, the respondent ha waited for more than three years to have the appeal disposed of. 13 Our examination and analysis of the provisions of Order I rule 21 (2) al the R of the Supreme Court leaves us with the clear impression that the omission legislative authority to provide for re-entry of an appeal that has been dismi é whilst allowing the same for one that has been struck out was deliberate rather accidental. We are of the firm view that whatever may have been the 3] ust there was a deliberate intention to withhold from this Court the jurisdictio: entertain any application to re-enter an appeal that has been dismissed for attendance. Appellant’s Counsel appeared in fact to appreciate this pc couching the application herein as though the appeal had been struck out anc dismissed, Finally we uphold the position advanced by Counsel Mmeta that an appea! cism.cse. on a technicality suffers the same fate as that dismissed on the merits. In vais *< we adopt the position taken by the Zambian Supreme Court of Appeal in the ca: Barclays Bank Ple v Njovu & and 41 Others (SCZ 9 21 of 2019) [2020) ZM SC where it reaffirmed its prior decision in Dar Farms Transport Limited v Mos Nundwe Appeal No 46 of 2014 that an appeal dismissed on a technicality canno: sec the light of day again, that such an appeal cannot be restored to the active cause as the court then becomes functus officio. The dismissal, it was held, serves ac © estoppel from further entertaining the appeal. Having dismissed the appeal never for non-appearance by the appellant our Court became functus officio. By way of summary, the application to re-enter the appeal is dismissed, with on the following major grounds: 1. our lack of jurisdiction to re-enter the appeal under Order II] rule 21 (2) o. Supreme Court of Appeal Rules or to exercise our Court’s ih: jurisdiction; No our having become functus officio upon dismissing the appeal for attendance by the appellant’s Counsel; 3. the tardy, indolent, and inequitable conduct of the appellant with regarc i prosecution of the appeal as shown by the appellant’s general ¢ timely prosecute the appeal. Pronounced in open court at Blantyre this 10" day of November 2022. 14 We concur. oA RRP EHE OE EH EERE HOHE HH EERO HERE EE RHEE HOH EERE KH EREE HON. JUSTICE R. MBVUNDULA, J. A. i i enh po : * i é FOR OEHE THER RHE HEHE ET EHO EEE ORE EHH OR EHO DE RH HORE DETER EES HON. JUSTICE L. P. CHIKOPA SC, J BAL ent, pone wn ar ; sccssssvsseesesseseane Kar Yerpocererceseanuons 3 DA SC, JA. X HON. JUSTICE F.& . cA PAI \ £O me , seen sno tg i, ig Sasi ‘$ SHEA HEHEHE RELATE REECE HEHEHE HREM ER ER HET ERE OOH REOS HON, JUSTICE LC KAMANGA, J. A. i 7 df a seman ‘ i ; bf ames j } if oe i A iY d } es i # ; seit 4000 Re ee »s COR KEE ELE HON JUSTICE A SEROHRKSTEHEH HEHEHE ERED E EH CHER EH KE HOR KHER HED HON. JUSTICE D. nyaKAUNDA KAMANGA, J. A.