United Purpose v Dzuwa and 4 Others (Miscellaneous Civil Appeal 12 of 2023) [2023] MWHCCiv 41 (27 October 2023)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI MZUZU DISTRICT REGISTRY CIVIL DIVISION MISCELLANEOUS CIVIL APPLICATION CAUSE NO. 12 OF 2023 (BEING CIVIL CAUSE NUMBER 77 OF 2023 AT THE SENIOR RESIDENT MAGISTRATE COURT SITTING AT MZUZU) BEFORE HONOURABLE JUSTICE KONDOWE BETWEEN UNTEED PURPOSE. ..cssssesssncnenerenvevmeeaihiacacemovesvpsdiiibinietastemaenneiis APPLICANT CHET DZUWA AND # OTHERS, occ ccnpsccsscssnsasevveumnveseeretenvennmnnaey RESPONDENT CORAM: HONOURABLE JUSTICE MAUREEN KONDOWE Sitima, Counsel for the Applicant Iphani, Co-Counsel for the Applicant Kambalame, Counsel for the Respondents Miss I. Mabaso, Senior Court Clerk RULING 1. BACKGROUND TO THIS RULING 1.1 The Applicant was a Defendant in a legal action that the Respondents brought against it before the Senior Resident Magistrate Court Sitting at Mzuzu. In that legal action the Respondents sought against the Applicant the reliefs of damages for false imprisonment, damages for defamation, exemplary damages for defamation, damages for malicious prosecution, exemplary damages for 1 Laz L3 1.4 malicious prosecution, prospective and continuous damages for defamation and costs of the legal action. By its judgment dated 14'" August, 2023 the Senior Resident Magistrate Court Sitting at Mzuzu found the Applicant liable to the Respondents for damages for defamation, false imprisonment and malicious prosecution. The Senior Resident Magistrate Court Sitting at Mzuzu awarded each of the Respondents the sum of K12, 000, 000.00 each for damages for these claims on the ground that the lower court considered the number of days the Respondents stayed in [police] custody and their anguish for having undergone the malicious prosecution. By an ex parte application for stay of execution pending appeal dated 13" October, 2023 the Applicant brought this application before this court. The application did not state its grounds. The application was brought pursuant to Order 10 rule 1 of the (High Court) (Civil Procedure) Rules, 2017 and the inherent jurisdiction of this court. The application was supported by a Sworn Statement in Support of Without Notice Application for Stay of Execution Pending Appeal dated 12'" October, 2023 which Counsel for the Applicant swore (“the Application Supporting Sworn Statement”). This court directed that this application would be heard inter partes. The Applicant therefore served the application on the Respondents on a date that is unknown the Applicant having not furnished this court with any proof of service of the application. Prior to hearing the application of the Applicant for an order to stay execution pending appeal of the judgment of the Senior Resident Magistrate Court Sitting at Mzuzu dated 14" August, 2023 the Applicant made an oral application to amend this application. The Applicant prayed for an order granting it permission to amend this application so that section 23 of the Courts Act (Cap. 3:02 of the Laws of Malawi) (“the Courts Act”) would be inserted into this application as the legal basis on which the Applicant brought this application. The Applicant prayed that if this court granted this prayer it should be allowed to allege that its application had been brought pursuant to Order 10 rule | of the Courts (High Court) (Civil Procedure) Rules, 2017 read together with section 23 of the Courts Act. 2. ORAL APPLICATION SUPPORTING ALLEGATIONS Al 2.2 Having made an oral application for the order to be granted permission to amend the application the Applicant did not file any application supporting sworn statement. In its oral argument in support of the application for an order to be granted permission to amend its application the Applicant alleged the following matter: 2.2.1 It forgot to indicate that section 23 of the Courts Act which gives this court jurisdiction over this application is the legal basis on which it brought its application. 3. ORAL APPLICATION OPPOSING ALLEGATIONS 3.1 Dee The Respondents orally opposed the application the Applicant made for an order to be granted permission to amend its application. In their oral opposing argument to the application the Applicant made for an order to be granted permission to amend its application the Respondents alleged the following matters: 3.3.1 Counsel for the Applicant had not addressed this court about the Order under which its oral application had been made: 3.3.2 The Respondents got served with the application of the Applicant for an order to stay execution pending appeal of the judgment of the Senior Resident Magistrate Court Sitting at Mzuzu on 11" October, 2023. Between this date of service of the application and its date of hearing on 25" October, 2023 there were 14 days. This was ample time within which the Applicant could have brought its application and served it on the Respondents so they got an opportunity to respond to it; 3.3.3 The application that the Applicant made affected the basis of its application for an order of stay of execution of judgment pending appeal. The 3 Respondents relied on the judgment of Kenyatta Nyirenda J. in George Kainja v. Director of the Anti-Corruption Bureau, the Director of Public Prosecutions and the Attorney General Judicial Review Cause Number 48 of 2022 in which he held that a party that seeks to move a court must cite the specific provisions of law that clothe the court with the jurisdiction that the party seeks to invoke in its opposition to the application of the Applicant; and 3.3.4 The Applicant could not make this application orally. 4. THE LAW ON APPLICATIONS FOR PERMISSION TO AMEND COURT DOCUMENTS 5. 4.1 42 43 The Applicant did not state any specific procedural or statutory authority of law on the basis of which it made its oral application for an order to be granted permission to amend its application. The Applicant argued that its application was founded on the following alleged general principles of law: 4.1.1 In the alleged absence of a specific statutory provision allegedly governing the amendment of documents other than statements of case this court allegedly had inherent jurisdiction to allow the Applicant to amend its application. This alleged inherent jurisdiction was called upon on the alleged basis of allegedly Order | rule 5 of the 2017 Rules whose overriding objective allegedly urged this court to ensure that the parties were on an equal footing so this matter is allegedly expeditiously and fairly dealt with; and 4.1.2 This court allegedly has inherent jurisdiction to manage its process to ensure that there would be a fair trial. Order 10 rule 1 of the Courts (High Court) (Civil Procedure) Rules, 2017 (“the 2017 Rules”) deals with applications in proceedings and interlocutory orders. It states that a party may apply during a proceeding for an interlocutory order or direction of this court by filing an application in a proceeding in Form 4. Order 25 rule l(c) of the 2017 Rules states that subject to the direction of a Judge the Registrar may exercise the jurisdiction, powers and functions of the court to make, or refuse to make, an order on amendment of documents. DETERMINATION OF THE APPLICATION OF THE APPLICANT 4 51 In its oral application for an order to be allowed to amend its application in the manner it proposed the Applicant prayed for this order. This oral application required this court to determine whether or not the Applicant should be allowed to amend its application as it proposed. This oral application also required this court to determine whether or not this application should be dismissed with costs on the grounds of the oral application in opposition to it that the Respondents addressed this court about. Neither the Applicant nor the Respondents filed any skeleton arguments in compliance with Order 20 rule | of the 2017 Rules which makes the filing and service of skeleton arguments in all interlocutory applications mandatory at least two days prior to their hearing. 5.2 This court exercises its discretion on the question whether or not it should grant the Applicant permission to amend its application in the manner sought to decline to grant it this permission for the following reasons: 524 This court agrees with the Applicant that oral applications are permissible. Order 10 rule 2(1) (a)(b) and (c) of the 2017 Rules lays down the legal requirements that an applicant for an interlocutory order must satisfy prior to the sought order being granted. These legal requirements comprise the following: (a) An applicant or their legal practitioner must sign the application in the proceeding; (b) the applicant must cite the parties as in the proceeding or anyone whose interests are to be affected by the order sought, and (c) the application must be signed and sealed by the Registrar. Section 2 of the Courts Act defines “Registrar” as the Registrar of the High Court and includes an Assistant Registrar. Order 10 rule 2(2) of the 2017 Rules qualifies Order 10 rule 2(1)(a)(b) and (c) of the 2017 Rules by categorically stating that nothing in the preceding Order 10 rule 2(1)(a)(b) and (c) of the 2017 Rules prevents a party to a proceeding from making an oral application during the proceeding or prevents this court from making an order based on the oral application. It is so ordered. It is the considered judicial opinion of this court that while oral applications are permissible under the 2017 Rules pursuant to Order 10 rule 2(2) of these rules the opposition to the oral application of the Applicant that the Respondents expressed is justifiable in the circumstances of this dispute on the following grounds: 5.2.1.1 The Respondents were correct in their observation that it was not only 5.2.2 irregular but also unlawful under the 2017 Rules for an application in a proceeding such as the one the Applicant orally made for an order to be granted permission to amend its application to proceed without the Applicant having stated the authority of law on the basis of which it got made. It is so ordered. Proceeding in that manner was irregular in that such an approach inevitably led to the question of law whether or not the Applicant had at all invoked the jurisdiction of this court in that respect. It is so further ordered. More so considering that the Applicant orally argued that the 2017 Rules allegedly only provide for amendments of statements of case on the basis of an alleged authority of law that was not even particularized. This court observed that this argument was hollow and lacked any legal basis for the further reason that Order 25 of the 2017 Rules provides for the powers and functions of Registrars. Of contextual relevance to the baseless oral argument of the Applicant in this regard is Order 25 rule I(c) of the 2017 Rules which is in the following terms: “Subject to the direction of a Judge the Registrar may exercise the jurisdiction, powers and functions of the court to make, or refuse to make, an order on amendment of documents.” It is so ordered; and This court observed that this is a second ruling that the Applicant has had delivered in this court over its application for an order of stay of execution pending appeal in its bid to have the execution of the judgment of the Senior Resident Magistrate Court Sitting at Mzuzu dated 14" August, 2023 stayed. By a ruling of this court dated 18" October, 2023 delivered within the context of the ex parte application for an order to stay execution pending the determination of an application to stay execution pending appeal that the Applicant brought this court declined to determine that application on the ground of lack of jurisdiction. Among others this court thoughtfully considered that having not brought that application pursuant to section 23 of the Courts Act the Applicant had not invoked the jurisdiction of this court and therefore properly brought any application before this court at all. Given this earlier decision of this court an inevitable question of law that also arose in the mind of this court was whether or not it would be fair, just and lawful in the circumstances of this heavily-contested oral application to allow the Applicant to now insert this statutory provision into its application so that its application allegedly read as if it had been brought under Order 10 rule 1 of the 2017 Rules read together with this proposed statutory provision. It is the thoughtfully-considered view of this court that to grant the Applicant the permission to amend its application in the manner that it sought well knowing that jurisdiction to entertain the earlier ex parte application had been declined on the ground of its total omission in this earlier ex parte application would be totally unjust for the following reason, It is so ordered. To allow the Applicant to effect this sought amendment in the context of the present application would in essence and for all intents and purposes have the judicial effect of permitting it to set aside the order that this court handed down in the earlier perfected ruling dated 18" October, 2023 through the back door. It is so ordered. This cannot be. It is also so ordered. More so also considering that the failure, neglect and refusal on the part of the Applicant to proceed with the application for an order of stay of execution pending appeal on the basis of section 23 of the Courts Act now amounts within the context of the present application to an irregularity that this court has no jurisdiction to cure pursuant to Order 2 of the 2017 Rules based on its earlier perfected ruling dated 18" October, 2023. It is so ordered. 5.3 This court dismisses the oral application of the Applicant for an order to be granted permission to amend its application in the manner it proposed for the reasons stated in this ruling. It is so ordered. Section 30 of the Courts Act states that the costs of court proceedings are in the discretion of a court. Order 31 rule 3(1)(a)(b) and (c) of the 2017 Rules amplifies this matter. Order 31 rule 3(1)(a) of the 2017 Rules states that this court has discretion as regards whether or not costs must be paid by one party to another. Order 31 rule 3(1)(b) of the 2017 Rules states that this court has discretion to decide the amount of any payable costs. Order 31 rule 3(1)(c) of the 2017 Rules states that this court has discretion to decide when costs must be paid. Order 31 rule 7 3(2) of the 2017 Rules states that where this court decides that costs must be paid, an unsuccessful party is ordered to pay the costs of a successful party. This court exercises its discretion on costs to direct and order that the Applicant shall pay the Respondents the costs of this application. It is so ordered. The costs that the Applicant is ordered to pay the Respondent shall be agreed upon between it and the legal practitioners for the Respondents failing which the Registrar is directed to assess and award them to the Respondents on a standard basis on a date that he is at liberty to fix. It is so ordered. THE RIGHT OF THE APPLICANT TO APPEAL AGAINST THIS RULING 6.1 The Applicant has a right to appeal against this ruling pursuant to section 21 of the Supreme Court of Appeal Act (Cap. 3:01 of the Laws of Malawi). This provision states that an appeal lies to the Supreme Court of Appeal from any judgment of a High Court or Judge in any civil cause or matter. Section 2 of the General Interpretation Act (Cap. 1:01 of the Laws of Malawi) defines “judgment” in relation to a court as including this decision. This court declines to grant the Applicant leave to appeal against this ruling before the Supreme Court of Appeal. It is so ordered. a Delivered at Mzuzu this .....2™......... a 0 C7 0G cA 2023 M. KONDOWE JUDGE