IN THE MALAWI SUPREME COURT OF APPEAL

SITTING AT LILONGWE
MSCA CIVIL APPEAL NO. 16 OF 2020
(Being High Court Civil Cause No. 658 of 2017, Lilongwe District Registry)

ON THE 25™ DAY OF NOVEMBER, 2020

BETWEEN

PATRICK NGWIRA...........ccccccsscecsscsccees 18* APPELLANT

MR, CHIUMIA ssssssssnsssssens
seas consens ctacsaases 2°? APPELLANT
AND

FRANCIS NGWIRA...........ccccccccsccccssccsccees RESPONDENT

CORAM: THE HONOURALE CHIEF JUSTICE, A.K.C. NYIRENDA SC

HONOURABLE JUSTICE E.B. TWEA SC, JA
HONOURABLE JUSTICE R.R. MZIKAMANDA SC, JA
HONOURABLE JUSTICE A.C. CHIPETA SC, JA
HONOURABLE JUSTICE L. P. CHIKOPA SC, JA
HONOURABLE JUSTICE F. E. KAPANDA SC, JA
HONOURABLE JUSTICE J. KATSALA, JA

Ki. BOK voccivcere seesuenersmsccvercuoneeneneav COUNSEL FOR THE APPELLANTS

M. KAUTSI..... cece see e eee eeeeee COUNSEL FOR THE RESPONDENT

W. SHATBO (ATTIMU i. cccccsscgsvcssuscveusves JUDICIAL RESEARCH OFFICERS

C. CHIMTANDE/E.MINIKWA...........
0. cee eeeeeeeeeee ees RECORDING CLERKS

2. MTHUNZL/V.MOMBERA os sssvessavesecnmmrncca
seins COURT REPORTERS
 JUDGMENT

NYIRENDA, SC, CJ

The agreed facts in this matter are that the respondent is

the first appellant’s son. The marriage between the first
appellant and the respondent’s mother was since dissolved.
In issue is a piece of land Title Number 25/SQ173 situated
in Area 25 in Lilongwe City. The second appellant bought
that piece of land from the first appellant. What is in issue
in this case is whether at the time of sale the piece of land
belonged to the first appellant or it had been passed on to
the respondent by the first appellant and the respondent’s
mother. The respondent claims that the piece of land was
advanced to him while his father and his mother were still
married and that the land was in fact subsequently
registered in his name.

It is the respondent’s claim, in the court below, that at the

dissolution of his parents’ marriage, the court awarded him
the piece of land as part of its order distributing matrimonial
property, apparently because his parents had already given
the land to him. The case for the respondent is therefore to
stop the first appellant from selling the property to the
second appellant. The respondent seeks an order of
permanent injunction.
In their joint defence, which strictly should have been split
because of their different positions in the matter, the two
appellants contend that the piece of land does not belong to
the respondent. The first appellant’s main position is that
the property was never given to the respondent during or
after the marriage with the respondent’s mother. That at no
point did he pass on ownership of the property to the
respondent and further that he is not aware of the court
making an order giving the property to the respondent at the
time of dissolution of marriage between him and the
respondent’s mother. According to him, the piece of land
was his at the time he sold it to the second appellant.

The second appellant’s case is that he is a bonafide

purchaser without notice of any competing title or interest
on the land to that of the first appellant. According to him,
he took all due diligence to ensure that the property was not
encumbered at the time he bought it. He has since
proceeded to develop the land.

This appeal is very narrow because of the stage at which the

decision of the court below was made. The court below
terminated the appellants’ case at mediation stage. The
appellants’ defence was struck out on account of failure to
attend a mediation session. The appeal is against the
exercise of discretion by the court below to strike out the
defence, at that stage of the case, in light of the law and the
facts around what happened on the day mediation was set
‘to be heard. The amended grounds of appeal state:

“(a) The learned Judge erroneously exercised his discretion

under Order 13 Rule 6 of the Courts (High Court) (Civil
Procedure) Rules 2017 when he refused to restore the
Appellants’ defence and thereby erred in law.

(b) The learned Judge erred both in law and in fact when he
held that the Appellants did not have a genuine case to raise
in response to the Respondent’s action.

(c) The decision of the learned Judge complained of was against

the weight of the evidence and occasioned an injustice to the
Appellants.

On the day set for mediation, the respondent was in

attendance. Although the first appellant was at the court
premises, his lawyer did not turn up. The second appellant
was not at the court. When the matter was called, a court
clerk was sent to cal] the first appellant to come and appear
in person. Because his lawyer was not present, the first
appellant declined to go and appear before the learned
Judge. Since there was proof of service of the hearing, the
learned Judge proceeded to hear the respondent, who
sought that the defence be struck out. The court was
persuaded. Accordingly, the defence was struck out on
account of the appellants’ failure to attend without
reasonable cause having been served with a Notice of
Adjournment.
Soon upon becoming aware of the determination, the
appellants made a joint application to have the matter
restored, alongside an ex-parte application for stay of
execution of judgment pending an application to set aside
the judgment.

The application was attended to by a different counsel from

the one who had failed to attend court at the time the
appellants’ defence was struck out. In his submission
counsel branded his predecessor as negligent in failing to
attend court. Counsel however pleaded with the court not
to punish the appellants on account of the negligence of
their lawyer. The court was not persuaded by counsel’s plea
and maintained its decision. The decision of the court,
which is very brief, states:

“ORDER/ DECISION

Having gone through all the relevant documents in support of the

applications, first to restore the case of the defendants and secondly
to suspend the enforcement of the judgment entered in default of
attendance by the defendants my court hereby declines both
applications.

In the first place the defendants have not shown that their lawyer
was not aware of the appointed date. Rather they argue that he was
simply negligent to attend to a court appointment. Actually if the
story of the first defendant is accepted at face value Counsel Nkhono
actually told his client that he was on his way to court. If anything
 may be the defendants should obtain a remedy against their lawyer
for negligently handling their case. However, they cannot disown
their conduct as he was the lawfully recognized agent in their
proceedings. Above and beyond that the conduct of the first
defendant in refusing to appear in Chambers when he was already
at Court premises doesn’t show any seriousness towards court
processes. Indeed, as has been pointed by the claimant the
defendants do not seem to have a genuine case to raise in response
to the present action and may be seeking to exploit procedural
technicalities to simply slowing the litigation process and hence add
to the cost thereto. Under the current Civil Procedure rules the
court is enjoined to consider saving costs as a factor in law. The
rules are applied to a given case. To permit the defendants to benefit
from their own decision — whether through Counsel on record at the
time or in person to fail to attend the prescheduled mediation might
be a dereliction of judicial responsibility on my court’s part. I have
therefore declined such an irresponsible request and hereby dismiss
the present applications as lacking in merit and substance. So
ordered.”

Order 13 rule 6 of the Courts (High Court) (Civil Procedure)

Rules, 2017, provides for what is relevant to what
transpired in this matter as follows:

“(1) Where it is not practical to conduct a scheduled mediation

session because a party fails without good cause to attend within the
time appointed for the commencement of the session, the Judge may-

(a) dismiss the claim, where the non-complying party is a claimant,

or strike out the defence, where the non-complying party ts a
defendant;
(b) order a party to pay costs; or
 (c) make any other order that is deemed just.

(2) A party whose case has been dismissed for non-attendance

may apply to the Court for restoration of the case.”

Counsel Soko for the appellants submits, substantially, that

the court below was punitive in outright striking out the
defence when the scheme in Order 13 rule 6 is graduated.
That the rule gives a court wide latitude in determining the
appropriate sanction for failure to attend a mediation. It is
further submitted that it is not in the practice of courts to
deny parties the opportunity to have their matter
determined on merit. He refers to the decision in Msindo v
Dairiboard and Malawi Limited, MSCA, Appeal Case No. 31
of 2011 where the court said:

“a court should therefore not be allowed to, in the name of

good case management and the fair and expeditious disposal
of matters, proceed in a manner that occasions injustice to the
parties before it, denies parties an opportunity to have their
matters decided on merits, effectively denies them access to
the courts, or permits a reckless disregard to the amount of
resources expended on litigation. On the contrary, a court
must manage its case load in a manner that enhances our
people’s access to the courts, ensures that their matters are
dealt with fairly, expeditiously and in a manner that pays due
regard to the amount of resources i.e. time and treasury
expended towards litigation. Where therefore a party should,
as does happen, be sanctioned for failure to comply with rules
of procedure, directions, principles of good case management

7
 etc. it is important firstly that the trial court sanctions the
correct persons. Secondly, if we may borrow from criminal
jurisprudence via R v Shauti_8 MLR 69 the sanctions must fit
the transgressor, the transgression, be fair to the litigants and
be tinged with mercy.”

Mr Soko argues that the court below did not explain why it
chose the most punitive sanction. It is also felt that the
court lost out on the overriding objective of civil litigation as
emphasized in Order 6 rule 5, which is to deal with cases
justly. We have also been referred to section 41 of the
Constitution which provides for the right to final settlement
of legal issues, the implication being that legal issues should
not be terminated on _ technicalities, among other
considerations.

It seems to us that the decision of the court below was

largely influenced by the fact that counsel for the appellant
had been served with appropriate notice of the scheduled
. mediation hearing. By not turning up for the hearing and
the court not having been informed of the reasons for
counsel’s absence, the court weighed in on counsel’s
conduct and in its words, the appellants could not disown
the negligent conduct of their lawfully recognized agent. It
was therefore more to counsel’s negligence that the matter
found its fate.

The court also referred to the fact that the first appellant
refused to attend the hearing although he was within court

8
premises and was invited to come and attend. In the court’s
opinion, that was a demonstration of lack of seriousness.
We will hasten to say that this observation was unfortunate.
It will not preoccupy us much. The first appellant was
represented by counsel and therefore expected his lawyer to
be present. He obviously, in our opinion, must have felt
insecure, and perhaps even fearful, to dare it alone before
the learned Judge. It is not uncommon for ordinary citizens
to be apprehensive and feel uncomfortable before courts.
We believe that his declining to attend the proceedings on
his own when he had chosen to be legally represented
should not have been faulted by the learned Judge.

For the respondent, the primary submission is that this

matter was entirely in the discretion of the court. That the
court below having exercised its discretion on the facts and
the applicable law, this Court should be slow to interfere.
We have been referred to the cases of Willy Kamoto v Limbe
Leaf Tobacco Company Limited [2010] MLR 467 and
Kamwamba v Njala and Sons [1971-72] MLR 75 supporting
the position that appellate courts will be slow to interfere
with a trial court’s exercise of discretion. Fortunately, we
are familiar with these authorities emanating from our own
courts, including this Court. The same authorities have
been cited by the appellants. We will certainly apply the
principles enunciated in those cases to the circumstances of
the matter before us.
We should at this point also confirm that we will attend to
this matter by way of rehearing as we always do, and what
that entails, as pronounced in Mutharika and the Electoral
Commission v Dr. Chilima and Dr. Chakwera, MSCA
Constitutional Appeal No.1 of 2020. We will reconsider the
entire proceedings before the court below, looking at the
facts, the evidence and the law which informed the decision
being appealed against. We have not received or admitted
any further material at the hearing and are therefore looking
at only what was before the court below.

The facts are that mediation failed several times. The record
does not explain why mediation failed on earlier occasions
except one, when it is said the learned Judge was occupied
with other responsibilities. According to the appellants, the
only time they failed to attend court was this last occasion
when the court struck out their defence. It is therefore not
clear to us when the court below refers to the importance of
saving cost in litigation when it could not be said the case
failed on several ptevians occasions on account of the
appellants’ absence. It might well be that the court itself
caused all of the earlier postponement of mediation.

What is on record is that the application for restoration of

the case was made by counsel Moses Nkhono who also swore
an affidavit in support of the application. The affidavit
contains an elaborate explanation about why counsel failed
to attend court on the day in question. He had requested

10
another counsel to attend to the matter on his behalf
because he had another case before a different judge. That
other counsel met with a car accident on his way to court
and so he also could not make it.

At the hearing of the application to restore, the appellants

were represented by counsel Matumba and not Nkhono.
What we find strange is that while relying on counsel
Nkhono’s documents for the rest of the application, counsel
Matumba decided to abandon that part of counsel Nkhono’s
affidavit that explained why he was not able to appear before
court. What is worse is that counsel Matumba presented
counsel Nkhono as negligent; negligent for not having
attended the mediation. We are sure that both counsel
Matumba and the learned Judge must have read the
affidavit of counsel Nkhono. Neither of them comments on
what counsel Nkhono deponed, apart from choosing to
brand him as negligent and the court relying on that
assertion.

In our view, counsel Matumba’s approach and how he

described counsel Nkhono, is what destroyed the case for
the appellants; rather unfortunate, we must say. We are
hesitant to accept that the fact of negligence on part of
counsel Nkhono was established. Both counsel Matumba
and the court below could have done better in raising and
relying on such a serious and far reaching allegation against
counsel Nkhono. Counsel Nkhono’s affidavit was never

11
discredited, apart from counsel Matumba choosing not to
rely on it.

We might go a little further. Even if it had been established

that counsel Nkhono was negligent in that he did not attend
a scheduled mediation when he had been served with the
notice of hearing, in the circumstances that we have
explored earlier, that should not have resulted in striking
out the appellants’ defence. We doubt whether a single
default by counsel, in a matter that had suffered several
previous postponements, possibly on account of the court
itself not being available, for we do not know what caused
the postponements, should have resulted into the drastic
measures that the court took.

We acknowledge that negligence by counsel in the conduct

of litigation can result in cases being lost and that litigants
who find themselves in such a situation would be entitled to
seek damages from their estranged counsel. What is
primary though is that the fact of negligence must be
established, and clearly established, we believe, before a
court can punish a litigant for the sins of counsel as agents.

Without, in anyway, attempting to undermine the

importance of due diligence, astuteness and responsibility
to clients on part of counsel and the role of our courts in
ensuring appropriate case management to save time and
costs, we would associate with the sentiments of Justice

12
Chipeta in ED Kakhombe v NBS Bank [2013] MLR 53 when
he expressed doubts about how fair vicarious punishment
of litigants for the sins of their counsel can be said to be,
especially when there is no explanation offered by the court
for ignoring all other possible penalties, where available.
What should also be acknowledged is that the reality might
actually be painful for the litigants, having lost their case
and having to engage another counsel to try and salvage
their loss. It will not farfetched to imagine that such an
experience may be energy sapping and debilitating on the
litigant. It is for that reason that taking the course of
punishing a litigant for the sins of their counsel should be
carefully thought through and sparingly used. That leads us
to Order 13 rule 6, that was central in this matter.

We have set out the rule earlier in this judgment. Obviously,

the rule is graduated. The court may dismiss the claim; it
may make an order for costs or it may simply make an order

that is deemed just. The court has a fairly wide latitude in

the orders that it may make, premised on what is just in the
matter before it. The overriding purpose of this provision is
assist the court balance the court’s power, essential in
managing proceedings before it, and the interest of justice.
What is further is obvious to us is that even in the quest to
manage proceedings, the construction of a rule of this
nature can only be that extreme measures should be left for
extreme violations, in the very spirit of a graduated rule.

13
We have taken time to analyze the facts that transpired in
this case that led to the striking out of the defence. While it
was within the law for the court below to strike out the
defence, we would put to question the manner in which the
court exercised its discretion on the law and on the facts
before it.

This Court has discussed the approach of appellate courts

in instances of exercise of discretion by lower courts. The

role of an appellate court is not to rush and replace its own

discretion for that of the lower court. The appellate court
will generally be slow in doing that; but it will not abdicate
its responsibility to do so when it is appropriate so todo. We
have discussed the applicable principles in Mutharika and
the Electoral Commission v Dr. Chilima and Dr. Chakwera
cited above and also in Kamoto v Limbe Leaf Tobacco
Company Limited [2010] MLR 467. Therefore, while this

Court will be slow to interfere with a trial court’s exercise of

a judicial discretion, it will not hesitate to do so where the
order made causes injustice to one or both of the parties.

Coming to the case before us, we do not agree that on the

facts and on the applicable law, the court below was justified
in taking the course of striking out the defence. The court
could have adjourned the matter and condemned the

appellants to costs. It could have made other orders that

would have been just in the circumstances of the case.

14
It also occurs to us that this matter was terminated at

mediation stage. The court below partly relied on facts and

evidence in the matter that was made available to it at

mediation stage.

The court used that information to determine, in its words:

“ _. indeed, as has been pointed out by the claimant, the defendants

do not seem to have a genuine case to raise in response to the

present action and may be seeking to exploit procedural

technicalities to simply slowing the litigation process and hence add
to the costs thereto.”

Order 13 rule 7 (1) provides that all communication at a

mediation session and the mediation notes and records of

the Judge shall be confidential. Rule 7 (2) (a) provides
further:

“(a).... a record, report, settlement agreement, except where its

disclosure is necessary for the purpose of implementation and

enforcement, and any other documents required in the course of

mediation shall be confidential”

By relying on the information and documents made

available by the appellants and respondent during
mediation in the order striking out the appellants’ defence,
the learned Judge obviously transgressed the confidentiality
of the mediation proceedings. That in itself is a grave
irregularity and also a threat to an already fragile mediation
regime. There is already reluctance in our legal systems to
15
offer meaningful information at mediation stage of

proceedings. If the confidentiality of information offered at

mediation was not assured, we are likely to face more and
more reluctance by litigants to approach mediation
genuinely and confidently.

For all that we have discussed, the order of the court below
striking out the appellants' claim cannot be sustained. The

appeal is allowed with the result that the defence is restored.

Mediation proceedings having failed to take place on account

of failure to attend by the appellants, the appellants should
be made to pay the costs of the mediation proceedings. We

so order. These costs should be paid before the matter

proceeds to the next stage after this judgment.

As regards this appeal, we order that each party bears own

costs.

16
Katsala, JA dissenting

My Lords, this appeal affords us the opportunity to proffer

reasoned guidance to judges and all judicial officers on this
now very important aspect of court business namely, the

exercise of the court’s case management powers. This is

necessary in view of the new procedure rules, the Courts

(High Court) (Civil Procedure) Rules, (hereinafter the Civil

Procedure Rules (CPR)), which came into force in October

2017. These Rules have overhauled the way the High Court
deals with cases. Therefore, it is necessary that this Court
must not lose sight of this fact when faced with appeals, like
the present one, against orders made by a judge exercising
the court’s case management powers which are, mainly, if
not always, discretionary.
This appeal is against the order made by the Judge refusing
to set aside a judgment he entered after striking out the
appellants’ defence following the respondent’s application at
a rescheduled mediation session failed to take place because
of the appellants’ unexplained absence. The Judge found
that the appellants did not show good grounds to warrant
an order setting aside the judgment and restoring the
appellants’ defence, and to re-reschedule the matter for

mediation.
The appellants have relied heavily on a passage in the

judgment of this Court in Msindo v Dairiboard Malawi Ltd

MSCA Civil Appeal No. 31 of 2011 (unreported) in support of

17
their appeal. And the majority opinion of this Court in the
present appeal also reflects the reasoning in that judgment.
My Lords, allow me to reproduce extensively the following
passage from the judgment which also includes the part

relied upon by the appellants in support of their appeal:

“The fifth issue concerns rules of procedure, case

management and the exercise of discretion. Rules of

procedure and tenets of good case management especially in

the Commercial Court require that a trial court should so
manage its case load in a manner that sees cases disposed
of as expeditiously and fairly as possible while at the same
time ensuring that prudence is exercised with respect to

time and treasury. We would therefore be quick to agree with

the trial court that a party should be appropriately
sanctioned [our emphasis] where it appears to be

proceeding counter to the immediately foregoing. The

question being what are appropriate sanctions? The answer

is left to the discretion of the court. But like is the case with
all exercise of discretion it must be exercised judicially. A
court should therefore not be allowed to, in the name of good
case management and the fair and expeditious disposal of
matters, proceed in a manner that occasions injustice to the
parties before it, denies parties an opportunity to have their
matters decided on the merits, effectively denies them access
to the courts, or permits a reckless disregard to the amount
of resources expended on litigation. On the contrary a court
must manage its case load in a manner that enhances our
people’s access to the courts, ensures that their matters are

18
dealt with fairly, expeditiously and in a manner that pays
due regard to the amount of resources i.e. time and treasury
expended towards litigation. Where therefore a party should,
as does happen, be sanctioned for failure to comply with
rules of procedure, directions, principles of good case
management etc it is important firstly that the trial court
sanctions the correct person|s]. secondly, and if we may
borrow from criminal jurisprudence via R v Shauti 8 MLR 69
the sanction must fit the transgressor, the transgression, be
fair to the litigant and be tinged with mercy.”
And their Lordships continued as follows:
“In the instant case the transgression was the late filing of a
pre-trial check list. The appellant admitted erring. He gave a
reason why he was not able to timeously file the list namely
a less than smooth change of lawyers. The fault clearly lay
with the lawyers. In dismissing his case the trial court
punished not the lawyers who were at fault but the appellant
who was not. It should also be noted that the appellant tried
to make good the error within the shortest time possible. He
even offered to pay costs occasioned by his failure to do the
needful in time. This is a litigant who showed penance. All
of the foregoing ought to have been reflected in the sanction
the trial court chose to impose. We should also refer to the
varied sanctions a court may impose under Order 15(2) of
the Rules. It can dismiss the action, strike out the defence,
make an order as to costs indeed make any other order that
it deems just in the circumstances. It is clear that the
sanctions range from the serious to the not so serious in

19
much the same way that the transgressions do. Meaning in
our view that a not so serious transgression should attract
a not so serious sanction. Similarly a serious transgression
should attract an appropriately serious sanction. In the
instant case the trial court in our view imposed a high end
sanction. High end sanctions should, as we have stated
above, be restricted to high end transgressions. A failure to
lodge pre-trial check list is not one such transgression.
Some sanction[s] other than a striking out of the defence,
including an order for costs payable immediately or

otherwise, would have been appropriate in all respects. It

could even have made the striking off of the defence and the
entering of a judgment on the counterclaim conditional upon
the payment of costs or any other condition that the trial
court deemed fit. Case management would not have been

compromised and the erring appellant would have been

brought back on to the straight and narrow. Clearly the

sanctions imposed bore no reasonable relation to the

transgression complained of.”

My Lords, before I delve into a discussion of the passage I
have just reproduced above, allow me to set out the relevant
provisions, in so far as the present appeal is concerned, of
Order 13, rule 6(1) of the CPR. It provides:
“Where it is not practical to conduct a scheduled mediation
session because a party fails without good cause to attend
within the time appointed for the commencement of the
session, the Judge may—

20
(a) dismiss the claim, where the non-complying party is a
claimant, or strike out the defence, where the non-

complying party is a defendant;

(b) order a party to pay costs; or
(c) make any other order that is deemed just.”
Inasmuch as this provision may be similar to Order 15, rule
2 of the High Court (Commercial Division) Rules, 2007
(which the Msindo case was about), it is important that their
differences must not be glossed over. It must be noted that
Order 15 was about a pre-trial conference whose purpose
was to ascertain whether the parties had complied with the
directions given by a judge at a scheduling conference. Order
15, rule 2 prescribed the sanctions for a party’s failure to
comply with the directions given. The sanctions were similar
to those prescribed under Order 13, rule 6(1) of the CPR
though the circumstances to which they apply are
fundamentally different.
So, in my humble opinion, their Lordships statement to the
effect that the sanction for default must reflect the
seriousness of the default may be correct bearing in mind
the diversity of orders and/or directions that a judge may
make or give at a scheduling conference. Some of the
directions or orders may not be central to the progress of the
matter in which case their transgression may rightfully be
considered as minor and may appropriately be sanctioned
by an order of costs or some other order while others may
be fundamental to the progress of the matter such that their
transgression may warrant the dismissal of the action or the

21
striking out of the defence. To that limited extent I would
subscribe to the position taken by their Lordships in the
Msindo case.
However, since the nature of the subject matter (Mandatory
Mediation) under Order 13 of the CPR is fundamentally
different from that under Order 15 of the High Court
(Commercial Division) Rules, 2007 (Pre-trial Conference),
with the greatest respect, their Lordships’ prescription

cannot and should not be applied wholesomely as prayed for

by the appellants and as is evident from the position taken
by your Lordships in the present appeal.
It is clear that at a failed mediation session the judge has
the power to make any or indeed all of those orders conferred
on him by Order 13, rule 6(1) of the CPR. I do not agree that
these powers or orders are graduated. I do not see anything
in the rule suggestive of that idea. If that were the intention,
then the rule would have said so.
Depending on the circumstances, the judge can dismiss an
action and at the same time order that the defaulting party
must bear the costs of the dismissed action. The judge can,
for instance, also order that an application to restore the
action will only be entertained upon full payment of the costs
of the dismissed action. Such an order would fall within the
province of paragraph (c) of the rule. In such a scenario the
judge will have made orders under all the paragraphs of rule
6(1). Thus, to assert that the rule is graduated is defiant of
its practicality, intention and spirit in as far as unexplained

ae
failure to attend a scheduled mediation session is
concerned.
On the foregoing, to assert that an order dismissing or

striking out the defence is an extreme measure is not

correct. If a party has, without good reason, not appeared

for a scheduled mediation session despite being duly served
with the notice thereof, would you expect the judge to

adjourn the session? Would that be an appropriate order?

And on whose prayer would the judge adjourn the matter,
and what would be the good ground justifying such
adjournment? Or would you expect the judge to order that
the absent party should pay costs for that day, and then
what? Adjourn the session? And again, on whose request
and for what good reason? It must be remembered that

failure to appear for a court appointment per se is not a good

reason for adjourning a matter. Rather, it is failure to attend
for a good cause which may warrant an adjournment.
In my judgment, that is where the fallacy in the view that
the rule is graduated lies. Dismissal of the claim or striking
out of the defence is the point of call when there is

unexplained failure to attend a mediation session, more so

when the other party (who is present) has moved the court
to make such an order. It would be circumspect and a shame
to the civil justice system in such circumstance if the court
were to insist that it will adjourn the matter and order the
defaulting party to pay costs for that day’s attendance - all
in the name of promoting our people’s right to access justice
or indeed trying to ensure that cases are determined on their

23
merits. In my view, dismissal of the action or striking out of
the defence would be the only appropriate and indeed just
order. And to hold that taking such a course is harsh or
extreme or that such orders should be reserved for extreme
violations is, as I have already stated, contrary to the
practicality, intent and spirit of the rule.
We also need to bear in mind that mediation is mandatory
save in cases exempted under Order 13, rule 1(2). It is one
of the steps that a matter must go through in the litigation
process. Consequently, there is need that parties must be
serious and committed to it just as they need to be with all
other steps. The fact that it comes early in the litigation
process does not dilute its importance nor does it relegate it
to an ancillary step. It is a major step and is core to the
litigation process. More so when you consider what is stated
in the overriding objective of the CPR — that the court must
encourage the parties to use alternative dispute resolution
procedure where the court considers it appropriate, and the
court must facilitate the use of such procedure. It does not
mean that the judge should be more lenient with default at
this stage than he/she would be with default at a later stage
in the litigation process. In my judgment, it is necessary that
the court must be pragmatic and firm at every stage of the
process as guided by the rules — and that does not amount
to harshness in any sense.
To advocate for leniency when there are no good grounds for
default contravenes the overriding objective of the CPR.
Such view is a relic of the old and traditional approach by

24
the courts as epitomised by Lord Atkin in Evans v Bartlam
[1937] AC 473 at 480 when he said:
“The principle obviously is that unless and until the Court
has pronounced a judgment upon the merits or by consent,
it is to have the power to revoke the expression of its coercive
power where that has only been obtained by a failure to
follow any of the rules of procedure.”
The thread in this principle is also found in the famous
dictum of Lord Bowen in Cropper v Smith (1883) 26 Ch. D.
700 at 710-711 where said:
"It is a well established principle that the object of the Court
is to decide the rights of the parties, and not to punish them
for mistakes they make in the conduct of their cases by
deciding otherwise than in accordance with their rights.... I
know of no kind of error or mistake which, if not fraudulent
or intended to overreach, the Court ought not to correct, if it
can be done without injustice to the other party. Courts do
not exist for the sake of discipline, but for the sake of
deciding matters in controversy...."
It is almost virtually impossible to fault these dicta in view
of the approach of the courts at that time and as was
reflected in the now repealed Rules of the Supreme Court,
1965. In fact, Order 20, rules 5(1) and 8(1) of the Rules of
the Supreme Court were couched along the dictum of Bowen
LJ. Though the dictum specifically was on amendments to
pleadings, this was the court’s approach to many, if not all
other defaults - procedural or otherwise, hence it should not

20
be surprising that in 1937 Lord Atkin made the statement I
have reproduced above.
However, as I stated some years back in Mike’s Trading
Group Ltd v NBS Bank Ltd Commercial Case Number 78 of
2014 (unreported), where a detailed discussion of the dictum
of Lord Bowen is made:
“The dictum loses a great deal of its footing when it is
considered in the light of the High Court (Commercial
Division) Rules, 2007. These Rules set out the fundamental
criteria to which the Court must have regard when dealing
with matters. These are within the overriding objective.”
I do not wish to reproduce a discussion of this approach that
I made in the Mike’s Trading case. My views have not
changed. I still subscribe to what I said in that case because
I believe it reflects the correct approach to case management
in the new dispensation as enshrined in the CPR.
Still manifesting the thread in the old approach to litigation,
Lord Diplock in the House of Lords in Birkett v James [1978]
AC 297, at page 318 stated as follows:
"The power [to strike out for want of prosecution] should be
exercised only where the court is satisfied either (1) that the
default has been intentional and contumelious, e.g.
disobedience to a peremptory order of the court or conduct
amounting to an abuse of the process of the court; or (2) (a)
that there has been inordinate and inexcusable delay on the
part of the plaintiff or his lawyers, and (b) that such delay
will give rise to a substantial risk that it is not possible to
have a fair trial of the issues in the action or is such as is

26
likely to have caused serious prejudice to the defendants
either as between themselves and the plaintiff or between
each other or between them and a third party."
Under the old approach the emphasis was on achieving
justice on the merits between the litigants in a matter. Now,
the approach in England and Wales has changed following
the introduction of the Civil Procedure Rules 1998.
The overriding objective in the High Court (Commercial
Division) Rules, 2007 which is also reproduced mutatis
mutandis in the CPR was adopted from the overriding
objective in the England’s Civil Procedure Rules 1998. And
commenting on the above dictum by Lord Diplock and the
changes introduced by the overriding objective in the Civil
Procedure Rules 1998, the Court of Appeal in Arbuthnot
Latham Bank Ltd and others v Trafalgar Holdings Ltd and
others [1998] 2 All ER 181 Lord Woolf, MR delivering the
judgment of the court said:
“The gradual change to a managed system which is taking
place does impose additional burdens upon the courts.... It
is therefore in the interests of litigants as astole, that the
court’s time is not unnecessarily absorbed in dealing with
the satellite litigation which non-compliance with the

timetables laid down in the rules creates.... In Birkett v

James [{1977] 2 All ER 801] the consequence to other
litigants and to the courts of inordinate delay was not a
consideration which was in issue. From now on it is going to
be a consideration of increasing significance. Litigants and
their legal advisers, must therefore recognise that any delay

27
which occurs from now on will be assessed not only from the
point of view of the prejudice caused to the particular
litigants whose case it is, but also in relation to the effect it
can have on other litigants who are wishing to have their
cases heard and the prejudice which is caused to the due
administration of civil justice. The existing rules do contain
time limits which are designed to achieve the disposal of
litigation within a reasonable time scale. Those rules should
be observed.”
Therefore, similarly, under the CPR regime (with an
overriding objective similar to that in the Civil Procedure
Rules 1998), the consideration cannot just be about the
parties before the court in a particular case but also about
all the litigants whose cases are waiting to be heard by the
court and the whole administration of civil justice. It is
apparent to everyone that court resources are limited and
that demand will always outstrip supply. Therefore, the need
to allocate the resources appropriately can never be

overemphasized. In fact, it is a requirement under the CPR.

Order 1, rule 5(1)(e) prescribes that the court must ensure
that each case is allotted an appropriate share of the court's
resources while taking into account the need to allot
resources to other cases in court. Now, if a litigant will
continue to enjoy having his case repeatedly set down for

mediation despite his unexplained failure to attend previous

scheduled mediation sessions so long as such a course does
not cause an injustice to his opponent, the end result will be
that the court will spend more time and resources dealing

28
with his one case at the expense of the many other cases
that are waiting to be scheduled for mediation and/or to be
heard. It will cause delay in the disposal of cases and the
rolling of the wheels of civil justice. In my judgment, that is
untenable in the new dispensation brought in by the CPR.
As such, anyone continuing to advocate the classical
approach today will have completely missed the practical
meaning and efficacy of the overriding objective and is
obviously in need of a complete overhaul of their mindset.
Of course, there is need for the court to strike a balance

between doing justice to one litigant in a case and all the

litigants in the other cases in court. Admittedly, this is not
and will never be an easy task. In Charlesworth v Relay
Roads Ltd (in liquidation) and others [1999] 4 All ER 397
Neuberger J, (talking about amendment of pleadings and
call of evidence), said (at 401-402):
"As is so often the case where a party applies to amend a
pleading or to call evidence for which permission is needed,
the justice of the case can be said to involve two competing
factors. The first factor is that it is desirable that every point
which a party reasonably wants to put forward in the
proceedings is aired: a party prevented from advancing
evidence and/or argument on a point (other than a hopeless
one) will understandably feel that an injustice has been
perpetrated on him, at least if he loses and has reason to
believe that he may have won if he had been allowed to
plead, call evidence on, and/or argue the point. Particularly
where the other party can be compensated in costs for any

29
damage suffered as a result of a late application being
granted, there is obviously a powerful case to be made out
that justice indicates that the amendment should be

permitted...
On the other hand, even where, in purely financial terms,

the other party can be said to be compensated for a late

amendment or late evidence by an appropriate award of
costs, it can often be unfair in terms of the strain of
litigation, legitimate expectation, the efficient conduct of the
case in question, and the interests of other litigants whose
cases are waiting to be heard, if such an application
succeeds."
These sentiments were made after the judge had considered
the classical approach as expressed by Millett LJ in Gale v
Superdrug Stores plc [1996] 3 All ER 468 at 477-478, [1996]
1 WLR 1089 at 1098-1099 where he said:
“Litigation is slow, cumbersome, beset by technicalities, and
expensive. From time to time laudable attempts are made to
simplify it, speed it up and make it less expensive. Such
endeavours are once again in fashion. But the process is a
difficult one which is often frustrated by the overriding need
to ensure that justice is not sacrificed. It is easy to dispense
injustice quickly and cheaply, but it is better to do justice
even if it takes a little longer and costs a little more.
The administration of justice is a human activity and
accordingly cannot be made immune from error. When a
litigant or his adviser makes a mistake, justice requires that
he be allowed to put it right, even if this causes delay and

30
expense, provided that it can be done without injustice to
the other party. The rules provide for misjoinder and
nonjoinder of parties and for amendment of the pleadings so
that mistakes in the formulation of the issues can be
corrected. If the mistake is corrected early in the course of
litigation, little harm may be done; the later it is corrected,
the greater the delay and the amount of costs which will be
wasted. If it is corrected very late, the other party may suffer
irremediable prejudice ..In Clarapede& Co v Commercial
Union Association (1883) 32 WR 262 at 263 Brett MR said:
‘However negligent or careless may have been the first
omission, and however late the proposed amendment, the
amendment should be allowed if it can be made without
injustice to the other side. There is no injustice if the other
side can be compensated by costs.' I do not believe that these
principles can be brushed aside on the ground that they
were laid down a century ago, or that they fail to recognise
the exigencies of the modern civil justice system. On the
contrary, I believe that they represent a fundamental
assessment of the functions of a court of justice which has
a universal and timeless validity."
This was a very forceful pronouncement which undoubtedly
strongly supports the classical approach to the whole
concept of litigation and civil justice. However, it would be a
serious failure on my part if I were to omit an equally if not
more forceful response to this pronouncement which was
proffered by the Court of Appeal of England and Wales in
Worldwide Corp Ltd v GPT Ltd [1998] EWCA Civ 1894 where

31
Waller LJ (with whom Lord Bingham CJ and Peter Gibson
LJ agreed) said:
"We share Millett LJ's concern that justice must not be
sacrificed, but we believe his view does not give sufficient
regard to the fact that the courts are concerned to do justice
to all litigants, and that it may be necessary to take decisions
vis-a-vis one litigant who may, despite all the opportunity he
or his advisers have had to plead his case properly, feel some
sense of personal injustice for the sake of doing justice both
to his opponent and to other litigants...."
I wish to promote this reasoning with which I would humbly
go along. In the new era created by the CPR the court is
called upon to do justice to all the litigants and not just to
the litigants in a particular case before it. Whilst it may be
true that “it is easy to dispense injustice quickly and
cheaply, but it is better to do justice even if it takes a little
longer and costs a little more" (per Millett LJ in Gale v
Superdrug Stores plc(supra)), in the modern dispensation the
objective of the court is to dispense justice quickly and
cheaply (as per the overriding objective). The court no longer
has the luxury of time and resources as it used to have in
the yonder years due to the ever-increasing number of cases
being registered and the ever-dwindling supply of public
resources being made available to the court. Inevitably, the
court's approach to handling of cases needs to change in
order to cope with these developments if it is to meet the
general public’s expectations. And the CPR was introduced
with this objective.

32
To wind up on my illustration on how entrenched the old
approach has been and how unfitting and outdated it is in
the CPR dispensation, let me refer to Ketteman v Hansel
Properties Ltd [1988] I All ER 38 where counsel submitted
that the authorities obliged a judge to allow an amendment
no matter how late it was made nor for what reason provided
the other party could be properly compensated by an award
of costs. He relied on the authorities set out in The Supreme
Court Practice and in particular the dictum of Brett MR in
Clarapede& Co v Commercial Union Association (1883) 32
WR 262 at 263:
"The rule of conduct of the court in such a case is that,
however negligent or careless may have been the first
omission, and, however late the proposed amendment, the
amendment should be allowed if it can be made without
injustice to the other side. There is no injustice if the other
side can be compensated by costs ...”
As it will be recalled these are the words which were quoted
by Millett LJ in Gale v Superdrug Stores plc (supra) in the
dictum I have reproduced above. Responding to Brett MR's
decision Lord Griffiths said (at 62):
"Furthermore, whatever may have been the rule of conduct
a hundred years ago, today it is not the practice invariably
to allow a defence which is wholly different from that pleaded

to be raised by amendment at the end of the trial even on

terms that an adjournment is granted and that the
defendant pays all the costs thrown away....

33
Whether an amendment should be granted is a matter for
the discretion of the trial judge and he should be guided in
the exercise of the discretion by his assessment of where
justice lies. Many and diverse factors will bear on the
exercise of this discretion. I do not think it possible to
enumerate them all or wise to attempt to do so. But justice
cannot always be measured in terms of money and in my
view a judge is entitled to weigh in the balance the strain the
litigation imposes on_ litigants, particularly if they are
personal litigants rather than business corporations, the
anxieties occasioned by facing new issues, the raising of
false hopes, and the legitimate expectation that the trial will
determine the issues one way or the other....the pressure on
the courts caused by the great increase in litigation and the
consequent necessity that, in the interests of the whole
community, legal business should be conducted efficiently.
We_ can _ no longer afford to show the same indulgence
towards the negligent conduct of litigation as was perhaps
possible in a more leisured age. There will be cases in which
‘cetiee will be better served by allowing the consequences of
the negligence of the lawyers to fall on their own heads
rather than by allowing an amendment at a very late stage
of the proceedings." (Emphasis supplied)
In Worldwide Corp Ltd v GPT Ltd (supra) Waller LJ concluded
his judgment with the following:
"We accept that at the end of the day a balance has to be
struck. The court is concerned with doing justice, but justice
to all litigants, and thus where a last minute amendment is

34
 sought with the consequences indicated, the onus will be a
heavy one on the amending party to show the strength of the
new case and why justice both to him, his opponent and
other litigants, requires him to be able to pursue it."
This decision was made under the Rules of the Supreme
Court 1965 and not the Civil Procedure Rules 1998, which
only came into force in England and Wales some five months
later. However, clearly the decision reflects the tenor of the
Civil Procedure Rules 1998, which was no doubt in the
minds of the judges, who must have been very familiar with
the terms of Lord Woolf’s reports that led to the reform of the
rules of procedure. This decision has been endorsed as
appropriate under the Civil Procedure Rules 1998. In
Savings & Investment Bank Ltd v Fincken[2003] EWCA Civ
1630 in paragraph 79 of his judgment, Rix LJ said:
"As a postscript I would add that, although decided prior to
the introduction of the [Civil Procedure Rules 1998] and
concerned with an egregious application to change direction
in the course of trial itself, the judgment of this court in
. Worldwide Corporation Ltd v. GPT Limited contains a full
compendium of citation of authorities as at that date which
emphasises that, even before the [Civil Procedure Rules
1998], the older view that amendments should be allowed as
of right if they could be compensated in costs without
injustice had made way for a view which paid greater regard
to all the circumstances which are now summed up in the
overriding objective."

35
What conclusion can be made from the cases I have cited?
The old, traditional or classical approach to litigation and
concept of civil justice has over the years paved way to a new
approach now codified in the CPR. The emphasis on allowing
everything possible in order to do justice so long as it cannot
prejudice the other party and can be compensated by way of
costs has given way to a new and more pragmatic approach
to litigation and concept of civil justice. Justice cannot
always be measured in terms of money. In everything that is
done in a matter, the court must balance between the rights
and interests of the parties to the action before it and those
of other litigants waiting to access justice in the courts. The
court must have regard to the need to prevent any one case
being conducted in a way that adversely interferes with the
resolution of other disputes and wastes the court’s
resources. Justice must be dispensed both expeditiously
and cheaply. There are many factors that a judge must take
into consideration when exercising his case management
discretionary powers under the CPR in order to dispense
justice. |
With the advent of the CPR, it is now necessary that the
court must look at justice not just in respect of the parties
before it but also in respect of all the litigants with cases in
court who are waiting for their day in court. This is a much
broader perspective of the concept of civil justice demanded
by the overriding objective of the CPR. Consequently, the
test can no longer be “whether a party would be prejudiced
or can be compensated by way of costs or not”. It is “what is

36
the effect of the default as between the parties themselves
and on the administration of civil justice” as a whole. It must
be appreciated that while the innocent party can be
compensated by way of costs for the inconvenience caused
by his/her opponent’s default, it would be difficult to
compensate all the other litigants who have been affected by
the default, including the court itself for the wastage of its
time and the public for the wastage of the taxpayers’ money.
We must all remember that court time is precious and there
is an important public interest in its proper use. (see
Securum Finance Ltd v Ashton Ltd [1999] 2 All ER (Comm)
Sal).
In Ashton & Another v Securum Finance Ltd [2000] EWCA Civ
197 the England and Wales Court of Appeal at paragraph 32
of the judgment said:
“In the Arbuthnot Latham case [1998] 1 WLR 1426, at page
1436G, this Court spoke of "the change in culture which is
already taking place will enable the courts to recognise for
the future, more readily than heretofore, that a wholesale
disregard of the rules is an abuse of process"; and, at page
1436H, of "the more ready recognition that wholesale failure,
as such, to comply with the rules justifies an action being
struck out, so long as it is just to do so". Following
the Arbuthnot Lathamcase there have been numerous
observations in this court which are to the same effect...”
So, under the CPR a disregard of rules or orders can be an
abuse of the court process. There is now demand for
seriousness on the part of everyone concerned in the

37
manner of conducting court business. The parties to a
proceeding are enjoined to assist the court in furthering the
overriding objective. (Order 1, rule 5(3)). The use of the word
'shall' in the sub-rule is deliberate. It denotes that it is not
optional on the parties to assist the court in furthering the
overriding objective. The parties are under an obligation to
do so. How do they help? By, among other things, by
conducting their cases in accordance with the rules, doing
such things as would help the court to save expense and
deal with the case proportionately and expeditiously. It
means that they must do everything they are required to do
timely, present their cases precisely and concisely, comply
without delay with any orders or directions made or given by
the Court, cooperate with each other in the conduct of the
proceedings, just to mention but a few.
On the other hand, the court is enjoined to seek to give effect
to the overriding objective whenever it exercises any power
conferred on it by the CPR or interprets any written law,
rules and regulations. Thus, in my opinion, it is also
necessary and imperative that when dealing with appeals
against decisions of judges made after the introduction of
the CPR, this Court must always endeavor to promote and
enhance the overriding objective. We must acknowledge that
the judge now has much wider case management powers
than previously and that the circumstances in which those
powers will be exercised are also much wider. At no point in
time should this Court, as an appellate court, under the
guise of promoting access to justice or whatsoever, make

38
statements, decisions or orders whose effect will be to

undermine, limit or take away the judge’s case management

discretion conferred by the CPR. We must allow the judge to
have the full discretion to conduct, manage, regulate and

control proceedings before him or her because that is the

scheme under the CPR. As an appellate court we must be

slow in interfering with the exercise of discretion on case

management issues. The judge handling the matter in real

time is best suited to assess and judge the gravity or

lightness of the situation before him than us who see the

matter and the issues on review. Therefore, we need to resist
the temptation of being too judgmental, fault finding,
sceptical and critical of the manner in which the judge
handled the situation before him. This Court should not
frustrate the case management scheme under the CPR but
rather promote it.
Further, my Lords, it is important to note that one of the
fundamental changes introduced by the CPR is the concept
of procedural justice. You will notice that the overriding
objective in the CPR omits the words “to enable the court?
which were contained in the overriding objective in the High
Court (Commercial Division) Rules, 2007 from which the
CPR overriding objective was copied. I would like to think
that the omission is an inadvertent typographical error
because it is obvious that rules per se do not and cannot

deal with proceedings, let alone justly. It is the court that

deals with proceedings and not the rules of procedure.
Obviously, it is the court which dispenses justice and not

39
the rules themselves. It follows therefore, that, despite the
omission (whether deliberate or accidental), the rules are
meant to enable the court to deal with proceedings justly.
Thus, Order 1, rule 5(1) of the CPR should not be understood
as saying that the overriding objective is to enable the court
to do justice’ in a particular case or proceeding. That is not
what it says. And even if it did, that would have to mean
justice according to law as laid down in, amongst other
sources, binding case law. What the rule does say is that the
objective is to enable the court ‘to deal with proceedings
justly’. The emphasis is thus on procedural fairness in the
court’s management of cases, rather than on any concept of
substantive justice. Furthermore, it is apparent — if not from
the reference to ‘proceedings’ (in the plural), then at least
from the terms of Order 1, rule 5(1)(e) i.e. “allocating to a
proceeding an appropriate share of the Court’s resources,
while taking into account the need to allocate resources to
other proceedings.” I have already discussed this aspect at
length in the context of the court’s need to take into account
the interests of other litigants with cases in court when
exercising its discretion in a particular matter.
In this respect I wish to refer to a passage in Blackstone’s
Guide to the Civil Procedure Rules, 2nd edn, at p 19 where
the learned authors write:
“That procedural fairness in one case will have to be
balanced against procedural fairness in others, in particular
through an appropriate allotment of the court’s resources.
In making general pronouncements on the meaning and

40
application of the CPR [Civil Procedure Rules 1998], the

appellate courts will have to have this exhortation to

‘managerial juggling’ and indeed all the other limbs of the
overriding objective well in mind. It is certainly true that the
CPR afford huge and on occasions open-ended discretions
to ajudge of first instance, particularly when exercising case
management powers; and it is quite likely that the Court of
Appeal will be even less prepared than previously to interfere
with the exercise of such discretions.”
And as I have earlier stated, this is the approach this Court
must take. This Court must not be overzealous to interfere
with the judge’s discretion when exercising case

management powers. If this Court adopts such approach, |

can vouch that the number of appeals against case
management orders will be significantly reduced. And it will
also promote vigilance on the part of the litigants in the
prosecution of their cases thereby giving efficacy to the
overriding objective and the whole scheme under the CPR
including the saving of expense and resources.
In this respect, my Lords I note that in your faulting the
Judge’s decision in the court below you are even discrediting
counsel for the appellant on how he argued the application
to set aside the judgment and restore the defence. I do not
think that is necessary and/or desirable. Counsel decided
on which points in the affidavit to take up and emphasize
and which one to abandon or underplay during his
submissions. He expressed his opinion on the manner his
predecessor handled the matter. That was a matter within

41
his judgment as counsel. I do not see anything wrong with
it. Whether his assessment was right or not is not an issue
before this Court and we can do well not to express an

opinion on it, let alone condemn him.

In my judgment, it was clear that the explanation given by
counsel Nkhono for his failure to attend the mediation
session was a blatant lie. The record shows that Mr Nkhono
said that he was attending another matter but would come
for the session. That is why the Judge did not convene the
session at the appointed time. However, Mr Nkhono never
appeared. Attempts to speak to him were unsuccessful

because his telephone was out of reach. Clearly, the story of

him having instructed another lawyer to appear on his
behalf and that that lawyer was involved in an accident was
not true. The lawyer who was instructed never deponed an

affidavit to that effect. There is no explanation why, being

aware that the Judge was waiting, that lawyer or Mr Nkhono
never relayed his predicament to the court. And no evidence,
say a police report, to support that allegation was produced
before the court. It is clear that this story was an
afterthought concocted by Mr Nkhono with the intention of
exonerating himself from the neglect and mess he had
created.
In this respect, I wish to commend counsel Matumba who

appeared before the Judge and argued the application to set

aside judgment and restore the defence, for his professional
astuteness and honesty. He knew that what counsel Nkhono
had deponed to in the sworn statement in support of the

42
application was a lie because it was not substantiated as I
have already said. He decided not to advance the lie before
the court.
In the circumstances, it is a serious professional
misjudgment, embarrassing and an unforgivable err for this
Court to condemn him on that score. As an officer of the
court, he needs to be applauded and celebrated for his
professional integrity. He showed exemplary conduct which
is increasingly becoming rare in the legal profession these
days. I take my hat off to him and wish to encourage him
and others out there to remain professionally upright and
correct at all times regardless of the circumstances they are
faced with. That is what professionalism is all about.
With the greatest respect, I do not accept that there was

need for the court below to be satisfied that counsel Nkhono

had conducted the appellant’s case negligently. It was clear
that Mr Nkhono had failed to attend the mediation session
for no good cause. The reason he gave in his affidavit was a
complete lie intended to dupe the court. I find that, both
counsel Matumba and the court were entitled and perfectly
correct in deciding not to rely or place any weight on the lie.
Therefore, it is a serious misjudgment for this Court to fault
them on that point and to reverse the Judge’s decision on
the basis that he refused to accept and uphold the lie.
Further, there is no evidence that the previous

adjournments of the mediation session were at the instance

of the court itself. I do not think it is fair to the court below
for this Court to proceed on such an assumption. As an

43
appellate court we should be slow in making such
assumptions especially in cases of this nature. As I have
already stated hereinbefore, we need to accept and respect
the special position in which a judge in the High Court is
especially when it comes to case management issues. And
there is need that comity of courts must prevail in the
judicial system. As such we must be slow in condemning

judges in the absence of facts showing that they were in err.

Where counsel has conducted a case negligently, it is up to
the client to take up the issue with counsel in an action for
damages in Contract, Negligence or otherwise. I do not
subscribe to the assertion that the court below should have
been slow in accepting that Mr Nkhono had conducted the
appellant’s case negligently in the absence of proof of

negligence. I think we need to differentiate between a trial of

a case founded on tort of negligence (i.e. where a client sues
his lawyer for professional negligence) and what was before
the court below. I do not think that the issue that was before
the court required establishment of negligence on the part
of Mr Nkhono for the court to dismiss the application to set
aside the judgment and restore the defence. That need
would only arise in an action where a client sues his lawyer
for professional negligence. A full trial would be necessary
before the lawyer can be condemned and found liable in
negligence. It is important to note that the Judge did not
refer to the alleged negligence in his order which to me
suggests that he did not find it to be decisive of the issue

44
which was before him. Therefore, he cannot be faulted on

that account.
Further, on the issue of the fairness of punishing a litigant
for the default of his counsel I find that the observations
made by Chipeta J (as he then was) in E D Kakhome v NBS
Bank [2013] MLR 53 which the appellants rely on and your
Lordships appear to endorse, lack sound legal foundation.
The Judge expressed serious doubts on the fairness of
striking out a defence on the ground that a party has failed
to attend mediation despite the notice thereof having been
served of the party’s lawyers. This is what he said at page
63:
« ..much as I am aware that service on one’s Lawyer is

deemed to be as good as direct service on such party, leaving

aside this legal fiction, this clearly looks like the classic case
of sending a litigant to burn in hell for the sins ofits Lawyers.
I have serious doubts about how fair such vicarious
punishment can be said to be, especially when there is no
explanation offered by the lower Court for neglecting all
other available penalties under rule 14 in preference to it.”
With the greatest respect, this proposition as I have said has
no sound legal backing. In my view, it is running foul to the
principles of Law of Agency. The judge accepted that a lawyer
is an agent of the client but said it is a legal fiction which he
could put aside. I do not agree. Law being law, you cannot
choose to ignore it and still remain lawful. As courts of law,
we must apply the law as it is and not as we would wish it
to be. I do not find it legally acceptable for a judge to ignore

45
the settled principles of the Law of Agency in the hope of
achieving what he perceives to be fair. Fairness and justice
must be according to law and facts and not according to the
personal whims of a judge.
Lawyers are agents of their clients. And it is legally accepted
that the actions of the lawyers can have serious adverse
effects on the client’s cases or even lives. Where there is a
breach of the agency relationship it is up to the client to seek
redress against the lawyer. It is not up to the court to
exercise sympathy and fail to make a lawful order for fear of
victimizing the client for the default of his lawyer. I do not
think that is how we can change the long-settled principles
of law of Agency. In my considered view, such an approach
should never get the endorsement of this Court, at least not
in the present matter.
My Lords, you have taken issue with the fact that the Judge
in the court below found that the first appellant’s refusal to
appear for mediation despite being present at court and

called in was an indication of lack of seriousness. I see that

you are faulting the Judge on account of the fact that the
first appellant was legally represented and expected his

lawyer to be present at the mediation session. And that the

Judge should have taken cognaisance of the fact that most
of our ordinary citizens are apprehensive and _ feel
uncomfortable before the courts.
My Lords, we seem to forget that the vast majority of the
citizens who appear in our courts are not legally

represented. They appear in person and yet are able to

46
conduct their matters to completion. It is the court’s duty to
ensure that such citizens are given a fair trial. Further, it is
also the court’s duty to, among other things, ensure that the
parties are on an equal footing regardless of whether they
are legally represented or not. (As per the overriding

objective - Order 1, rule 5(1) CPR). As such, I fail to

understand the rationale behind your Lordships reasoning

on this point. I have serious doubts that you have fully

considered the issue and the implications of what you have

said.
Yes, it is a citizen’s fundamental right to be represented by
a legal practitioner of his choice. But looking at the laws of
this country and even internationally, it is obvious that this
right is not absolute. There are so many laws, rules of

procedure and practice whose effect is to restrict this right.

As an example, even the scheme under the Legal Aid Act is
that despite every person’s right to legal representation, the
Legal Aid Bureau can refuse to provide legal aid (including
legal representation in a case) to a citizen. Even where legal
aid has been granted the Bureau can still vary, withdraw or
revoke legal aid. (See sections 5, 18, 19, 21, 22, 25,26, of the
Legal Aid Act among others).
In terms of court practice and procedure, we all know that
adjournments are at the discretion of the court. And we also
know that the courts have been very protective of this

discretion to the extent that it (this discretion) cannot be

interfered with even on appeal unless it is shown that its

exercise was perverse. (See Minister of Finance and others v

47
Mhango and others [2011] MLR 174 (SCA)). There is no right
to an adjournment.
For these reasons, and many others I have not mentioned, a
litigant cannot, as of right, demand that a hearing be

adjourned because his lawyer is ill or unavailable.

Therefore, I do not see anything wrong with the Judge’s
exercise of his discretion in the management of the case

before him when he proceeded to strike out the defence in

view of the absence of the appellants and their lawyer. In

any case I would have expected the first appellant to attend

the mediation session and ask for an adjournment on the
ground that his lawyer was not present despite intimating
that he would come for the session. I reckon the Judge might
have looked at the issue differently and would probably have
exercised his discretion in the appellants’ favour. But to
blatantly refuse to attend on the basis that he is legally

represented was not only impudent and presumptuous but

also a demonstration of utmost disrespect for the court and

the entire justice system. This should not be condoned by
anyone especially this Court. |

I can foresee that if we are not careful on this point a lot of

cases where a party is legally represented will be failing to
make progress due to the lawyer’s absence. | foresee lawyers
who may not be prepared for matters deciding not to attend
court knowing that the court will not proceed with their
matters in their absence. Our judges will be rendered

powerless in such situations and will be adjourning matters

for fear of being reversed on appeal if they were to do

48
otherwise. Adjournments will become automatic since we

will have taken away the court’s discretion over the grant or
refusal of an adjournment. This will have serious adverse
effects on the justice system as a whole. I do not think that
is what your Lordships would want to see happening.
My Lords, I do not agree that the Judge in the court below
contravened Order 13, rule 7(1) of the CPR when he made
his order. I do not see anywhere in the order to suggest that
he relied on confidential information. All I see is that the
Judge agreed with the claimant’s submission that the

defendants seemed not to have a genuine case against the

claim and were employing delaying tactics. In my many

years’ experience both as a legal practitioner and a Judge, I

know that a judge can make such a conclusion even just on
the pleadings without seeing any evidence. Further, under
the CPR there is what is known as front loading —- whereby a
litigant is required to attach to his statement of case or

defence the material documents that he is relying on in

support of his or her claim or defence. (See CPR Order 5,

rule 7(3) and rule 8). Such documents are not confidential.
I do not see anything wrong with a judge looking at those
documents plus the pleadings and forming such a

preliminary opinion. In the absence of evidence that the

Judge used confidential information, I find it unsafe and

unfair to condemn the Judge and impugn his decision on

that basis.

49
Further, I have serious doubts on whether the view your

Lordships have taken on what is confidential is correct

bearing in mind the whole process of litigation and how itis

conducted. Some years ago, I did express reservations over
such an interpretation of a similar rule and attempted to

demonstrate the difficulty it would present in the litigation

process. (See Helio Courvoisier SA v Malawi Posts

Corporation Commercial Case Number 16 of 2015

(unreported). In that case I held that the fact that a

document is included in a mediation bundle per se does not

mean that it is confidential. Practice will show that most if
not all the documents put in the mediation bundle (or copies
thereof) are also tendered in evidence during the trial of a
matter where mediation fails. Can you imagine what would
happen if the court were to say these documents are

confidential and as such are not admissible because they

were used during mediation? It would be difficult albeit

impossible to substantiate one’s case in the trial. My view

has not changed and I would hold that the documents before
the Judge were not confidential.

1 am fortified on this point by the wording of the rule itself.

Order 13, rule 7 of the CPR provides:
“(1) All communication at a mediation session and the

mediation notes and records of the Judge shall be

confidential.
(2) Without derogation from the generality of sub rule (1)—

50
(a) a record, report, settlement agreement, except where its

disclosure is necessary for the purpose of implementation

and enforcement, and any other documents required in the
course of mediation shall be confidential;
b) a Judge shall not—
(i) disclose information given in the course of the mediation
to a person who is not a party to the mediation without the
consent of the parties; or
(ii) be a witness in a proceeding relating to the same matter;
and
(c) a party to a mediation shall not rely on—
(i) the record of the mediation;
(ii) a statement made at the mediation session; or
(iii) any information obtained during the mediation, as
evidence in a proceeding or any other subsequent settlement
initiative, except in relation to a proceeding brought by
either party to vitiate the settlement agreement on the

ground of fraud.”

In my view what is confidential is: -

(a) Communication or statements at a mediation
session, that is, what the parties and the judge say
during the mediation session. No one can refer to
them outside the session.
(b) The notes and records taken or made by the judge.
These too cannot be referred to outside the four
walls of the mediation session.

ol
 (c) A record of what is transpiring at the mediation
session (if such record, electronic or manual, is
being take or compiled).
(d) A report on the session (if one is made).
(ec) A settlement agreement signed by the parties after
reaching agreement.
(f) Any documents required in the course of mediation,
that is, any document requested in the course of and
for purposes of the mediation.

There is no evidence before us showing that the Judge in the

court below referred to any of these in his order or indeed in
coming up with his decision refusing to set aside the
judgment. I wish your Lordships had taken time to consider
the rule in greater detail other than making the conclusion
you have made which, with the greatest respect, runs
contrary to what the rule itself provides as being confidential
and its practicality in the litigation process.

On the foregoing, my Lords, it is my opinion that in view of

the new dispensation introduced in October 2017 by the
CPR and on the authority of the principles discussed in
Mutharika and Electoral Commission v Dr. Chilima and Dr.
Chakwera MSCA Constitutional Appeal Number 1 of 2020
(unreported) and Kamoto v Limbe Leaf Tobacco Company Ltd
[2010] MLR 467, it cannot be said that the Judge in the
court below incorrectly applied the legal principles and/or
the CPR to the facts before him. Nor can it be said that his

52
exercise of his case management discretion was perverse or
that his decision is clearly wrong such that it amounts to an
injustice. His decision is soundly supported by the rules of
procedure as codified in the CPR and the established legal
principles on exercise of court’s discretion.

It must be accepted that in view of the CPR and the concept

of procedural justice, some cases will inevitably be
determined on procedure. This will not and does not mean
that there is no substantive justice. Procedural justice is
part and parcel of substantive justice. (See Adoko v Jemal
(1999) The Times, 8 July). As I have already stated
hereinbefore, failure to comply with procedural
prescriptions is an abuse of the court process. As such we
should not condone abuse of the court process in the name
of trying to determine cases on the merits. It is my view that
procedural prescriptions are part of the merits of a case. For
us to get to the merits we need to pass through the
procedural requirements. We cannot ignore the procedure
and hope to achieve justice on the merits.

There were no good grounds justifying the appellants’ failure

to attend the scheduled mediation session. The reason given
was untruthful and unsound. The Judge was justified in
refusing to set aside the judgment and/or restore the
defence. And the court’s discretion must not be obtained
through falsehood, dishonesty or fraud.

53
Therefore, I do not see any good reason why the appellants
should not suffer the consequences of their unexplained
failure to attend the mediation session. In my judgment, it
will be an injustice if the appellants are allowed to escape
the consequences of their default on the payment of the
wasted costs or any other condition. Justice cannot always
be measured in terms of money. (See Ketterman v Hansel
Properties Ltd (supra)). And this is what the overriding
objective of the CPR is seeking to entrench in our litigation
process. Thus, it is important that in these modern times of
the CPR we must never give the impression that money is
the solution to everything and/or that justice is more
accessible to the rich than the poor.

Thus, it is my view that this appeal is one of those cases

where the Court should be bold enough to look at a litigant
in the eye and tell him "sorry you will have to bear the blunt".
Indeed, it is one of those cases in which "justice will be better
served by allowing the consequences of the negligence of the
lawyers to fall on their own heads" (per Lord Griffiths in
Ketteman v Hansel Properties Ltd (supra)) than on the head
of everyone else. Whether the failure to attend the mediation
session was due to negligence, tardiness, complacency, lack
of seriousness, impudence, delaying tactics, or whatsoever,
one thing this Court needs to do is to ensure that the effects
of all that is restricted to the appellants themselves and
should not spread to the respondent, the other litigants in
court and the court itself. It is better to let the appellants

54
suffer an injustice, if it is injustice at all, and I believe it is
not, than to do injustice to the respondent, all the other
litigants whose cases are waiting to be heard and also the
general public whose resources will be wasted.

I would therefore, dismiss the appeal with costs.

Pronounced in open Court at Lilongwe, 234 June, 2021.

HONOURABLE JOSTICE E.B. TWEA SC, JA

HONOURABLE
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MZIKAMANDA SC, JA

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HONOURABLE J CE L.P. CHIKOPA SC, JA

HONOURABLE JUSTICE F.E. KAPANDA SC, JA

HONOURABLE JUSTICE J. KATSALA JA

56