Nthenga v Blantyre City Council (Civil Cause 556 of 1987) [1987] MWHC 24 (10 December 1987)

yy ee ee ee = IN THE HIGH COURT OF MALAWI, BLANTYRE PRINCIPAL REGISTRY oo OF MAL, a iN \ s , COUR CIVIL CAUSE NO.556 OF 1987 BETWEEEN : S. E. NTHENGA (MALE) ......ceccceeseecees PLAINTIFF AND BLANTYRE CITY COUNCIL: ....eceee00ecee06 DEPENDANT a CORAM: MTEGHA, J. —< > Chizumila of Counsel for the Plaintiff Mbendera of Counsel for the Defendant Kadvakale, Law Clerk ORDER This is an application by the plaintiff that the order I had made on 27th October, 1987, be vacated and declared null and void because the application upon which it was based contradicted 0.47 Rule 1 of the Rules of Supreme Court. A brief history of the matter appears to be this. On * l3th October, 1987, the plaintiff obtained judgment in default of acknowledgement of service. On 2lst October, 1987 the defendant filed an application to set daside this judgment and a stay of execution. The summons was returnable on 3rd November, 1987. On the same day, an ex-parte summons to stay execution pending the hearing of the inter-parte application was also filed by the court. This summons was returnable on 27th October, 1987. It came before me in chambers and I granted the application. The plaintiff now contends that it should be vacated because it was null and void. —e It was Mr. Chizgumila’s contention, on behalf of the plaintiff, that under 0.47 Rule 1 the application must be commenced by a summons and the summons must

be supported by an affidavit and must be served on the other party, giving the other party four clear days. As this order must be complied with, any application contravening 0.47 must be null and void, since the application is incompetent. On the other hand, Mr. Mbendera for the defendant has submitted that the application was ex-parte and it was not necessary to serve the plaintiffs with a summons. He has submitted that it was a matter of urgency in the form of an interlocutory injunction, because when the application was made on 21st October, 1987, the Registrar was on leave and therefore, the application could not be set down for hearing; in fact all the formali- ties had to be done by the Deputy Registrar in Lilongwe. It was open to the plaintiff to execute, therefore an ex-parte application was necessary. I do not agree with Mr. Chizumila’s submission. An ex-parte application in these circumstances could be made provided the matter is of an urgent matter and failure to do so would cause irreparable damage. In the case of Kotgohe patenprg see ch. Roime Baiiding Contractors Civil Cause No.458 of 1983 kinner, C. J. as he was then, was clearly of the view that such an ex-parte application could be entertained by the court. He even said, in that case, that if the bulk of the money was not owing, he would have granted the application for two or three days to enable the

application inter-parte to be heard. In the instant case, my order was to stay execution until the application inter-parte was heard. For these reasons, I would not vacate the order. The application is dismissed with costs. This order also applies to Civil Cause No.557 of 1987 B. C. Datta vs. Blantyre City Council and Civil Cause No.567 of 1987 K. G. Mbera vs. Blantyre City Council. MADE in Chambers this 10th day of December, 1987 at Blantyre. H. M. Mtegha JUDGE Ay ae al lee