IN THE HIGH COURT OF MALAWI
MISC. CIVIL CAUSE NO. 55 OF 2001
ESTHER DZIMBIRI PHIRI.................................1ST APPLICANT
MARY MBEKWANI...........................................2ND APPLICANT
CATHERINE V. CHITIMBE..............................3RD APPLICANT
JUDICIAL SERVICE COMMISSION.....................RESPONDENT
CORAM: HON. JUSTICE A.C. CHIPETA
Mr Nyimba, of Counsel for the Applicants
Mrs Chingana, Official Interpreter
On 6th April, 2001 Miscellaneous Civil Cause No. 55 of 2001 between
Esther Dzimbiri Phiri and the Judicial Service Commission was filed in
court. The Originating document was an ex-parte Summons for leave
for Judicial Review taken under Order 53 rule 3 of the Rules of Supreme
Court. The subject proposed for the review sought after was indicated
to be the Respondent’s decision in its Minute No. 42/00 not to appoint
the Applicant to the position of Magistrate on the ground of alleged dishonesty
through cheating during examinations. A number of reliefs were listed
as also sought on basis of the decision intended to be complained against
and these were followed by the grounds on which the reliefs were
said to be based. The Hon. Justice Mwaungulu granted the leave sought
that very day.
Following the leave, on 10th April, 2001 the Applicant in that matter
filed a Notice of Motion, supported by an affidavit with exhibits annexed.
This was accompanied by the formal order for leave for Judicial Review
and the papers that had constituted the ex-parte application for leave.
It was so done by virtue of Order 53 rule 5 of the Rules of Supreme Court.
The Notice of Motion was made returnable on 1st May, 2001. These
followed after this in that cause an affidavit of service apparently sworn
on 17th April, 2001 referring to a postage of the Notice of Motion to the
Respondent by Coachline Mail of 12th April, 2001. It is not clear
when this affidavit of service landed on the court file as it does not
appear to have been filed with the court.
Before the date for hearing in this matter could come to pass, on 27th
April, 2001 two other applications for leave for Judicial Review were filed
with the court. These were respectively in the names of the Applicants
Mary Mbekwani and Catherine V. Chitimbe, which were respectively registered
as Miscellaneous Civil Causes Nos. 58 and 59 of 2001. The Respondent
in these two matters, like in the initial matter, was also the Judicial
Service Commission. Here too the two Applicants were seeking a review
of the Respondent’s decision No. 42/00 not to appoint the two Applicants
to the positions of Magistrate on grounds of alleged dishonesty through
cheating during examinations.
Again in these two matters the Hon. Mwaungulu, J. granted leave on the
very day they were filed for the said matters to proceed to Judicial Review.
Formal Orders for leave were drawn and filed that same day in both those
files. An examination of these two records does not, however, disclose
what further steps, if any, the Applicants hereafter took in them.
There are no copies to show whether any Notices of Motion were taken out
following the leave and/or affidavits of service subsequent to the orders
relating to the leave that was granted in them.
Going back to the first of these applications, to wit, the matter in
which Notice of Motion had issued, i.e. the Esther Dzimbiri Phiri file,
there is no record as to what transpired on the first day appointed for
the hearing. I however take judicial notice of the fact that 1st
May, 2001, which was the material day, was a public holiday under the style
“Labour Day.” Again there is no indication what communication, if
any, took place between the Applicant and the Respondent as regards this
mishap concerning the unfortunate selection of the date of hearing.
The record however reveals that this matter was called before Hon. Justice
Tembo, but this was on 3rd May, 2001 a date not endorsed on the Notice
Mr Nyimba, appearing on behalf of the Applicant, Esther Dzimbiri Phiri,
is on record as moving the court to proceed with the hearing on the basis
that there was due service and that there was no word why the Respondent
was not present. In this address there was no reference to the shift
in dates from 1st to 3rd May, 2001 and there was also no explanation whether
the Respondent had been alerted of this change. The court however
adjourned the matter on observation that service was apparently effected
during the Easter holidays according to the details in the affidavit of
service. The date next set down for the hearing of this another was
11th May, 2001.
It is important I think for record purposes to point out here that
assuring, per the affidavit of service, that dispatch of the Notice of
Motion was indeed on 12th April, 2001, the next day, i.e. 13th April, 2001,
was Good Friday and 16th April, 2001 was Easter Monday. Besides it
is a fact that from 12th to 27th April, 2001 this court was on Easter vacation
under Order 64 of the Rules of Supreme Court which also coincided with
a Government Mandatory leave affecting the Respondent, ruling from 13th
April to 1st May, 2001. Further even if it were not for this, I apprehend
that there was another hitch in store against the hearing of the Applicant
thereby arising from the new mode of service the Applicant appears to have
experimented with. Service by Coachline Mail which was referred to
in the affidavit of service is, to my knowledge, not yet a recognized mode
of service under our laws and so the difficulty would have been to select
a date on which service could be deemed to have been effected.
On 11th May, 2001 when Miscellaneous Civil Cause No. 55 of 2001 was
called again for hearing, I was the Judge responsible for Motions for the
material week and so it was called before me.
I was on the occasion presented with what I will for lack of a better
expression, a combined affidavit of service. This affidavit was entitled
in three cause numbers including the cause numbers of the two Judicial
Review matters that were commenced on 27th April, 2001. It was also
entitled in the names of all three Applicants in the three applications
in existence then. The deposition contained in this combined affidavit
was to the effect that Notices of Motion and all necessary accompanying
documents in all three matters had been personally served on the Secretary
for the Judicial Service Commission in Lilongwe on 4th May, 2001.
I accepted this affidavit of service although it was not filed.
This was on the strength of information that the High Court Accounts office
was that day not manned. In fact in like manner and on basis of like
information I accepted another unfiled affidavit of service in Bankruptcy
Cause No. 2001 Re Alex Tchongwe, ex-parte Finance Bank of Malawi Limited,
which I also heard that same day.
It was then moved by Counsel for the Applicant Esther Dzimbiri Phiri,
that I hear the Applicant’s case on the premise that according to this
affidavit due service had been effected on the Respondent. It was
my observation that if the relevant Notice of Motion and supporting papers
was served personally on 4th May, 2001 then, inclusive of the day of service,
eight days had elapsed since service. The matter was in fact called
at 10.30 a.m. that day and there being no explanation why the Respondent
was not present either through an official or through Counsel I allowed
Counsel to proceed with the presentation of the Applicant’s case.
Before hearing could actually start an application was then made that
the case called be consolidated with the two Judicial Review cases commenced
on 27th April, 2001. The effect of the prayer was that, if granted,
the cases of Mary Mbekwani (Miscellaneous Civil Cause No. 59 of 2001) would
become part and parcel of the case of Esther Dzimbiri Phiri (Miscellaneous
Civil Cause No. 55 of 2001) which had just been permitted to commence.
The reasons offered for the proposed move were that these three cases are
founded on the same facts, that they are based on the same grounds, and
that the Applicants in all of them are in pursuit of the same reliefs,
the cause list in fact showed that all three matters were coming before
me that very day.
The application made and the reasons behind it made perfect sense to
me and so I allowed that the consolidation take place. This is how
the Applicants, Mary Mbekwani and Catherine V. Chitimbe, have become part
of this case, with the initial three separate cases now proceeding as one
case under the number Misc. Civ. 55 of 2001. Hence Esther Dzimbiri
Phiri who has retained her original cause number is now the 1st Applicant,
and Mary Mbekwani and Catherine V. Chitimbe who have joined her cause are
respectively second and third Applicants.
There is, I must say, one catch which escaped my attention in this consolidation
exercise. The combined affidavit of service bearing depositions to
the effect that in respect of each separate Applicant’s matter Notice of
Motion and accompanying documents had been personally served, it at this
point into time wholly skipped my mind that in fact in respect of the two
joining Applicants there was nothing in their files to show that anything
else had been done after obtaining leave to start Judicial Review proceedings.
This was a factor which was easily going to be detected if each file had,
as previously arranged, proceeded on its own and had been called separately
and independently from the others. The consolidation therefore apart
from its pronounced purposes also served to camouflage the fact that the
two matters, which were in fact not ready for hearing, were now taking
a ride on the back of the Esther Dzimbiri Phiri matter in which Notice
of Motion was duly taken out and served.
It is now at the stage of determining the matter that this hidden effect
of the consolidation is clearly coming to the surface and teasing my mind.
I am presently positively wondering how the combined affidavit of service
could suggest that on 4th May, 2001 the Notices of Motion in the hitherto
separate and independent cases of Mary Mbekwani and Catherine V. Chitimbe
were personally served on the Respondent when on those files there is no
sign of issue or filing of any Notices of Motion following the Orders of
leave of 27th April, 2001.
Certainly if on 4th May, 2001 only the Notice of Motion in respect of
the Original Esther Dzimbiri Phiri file was issued and available, and if
it is the one that was personally served on the Respondent, that single
service could not have amounted to effective service on all three matters
which were then still separate from each other. In my view even swearing
a combined affidavit representing that apart from Esther Dzimbiri Phiri’s
matter effective service had also been achieved in the two other matters
was meaningless if the allegedly served Notices of Motion were in fact
non-existent on those other files. I equally take the view that consolidation
of these three matters on 11th May, 2001 could not remedy the falsehood
projected in the deposition to the effect that there had been effective
service in all three matters on 4th May, 2001.
In my understanding of the law it is only after the consolidation on
11th May, 2001, and not before, that service of due document in the title
of the consolidated cause would be acceptable as effective service for
the whole new case as it now stands and effectively cover all three Applicants.
I accordingly find myself compelled in the circumstances to hold, which
I do, that as per Order 2 rule 1(1) of the Rules of Supreme Court we have
a gross irregularity at our hands in this case. Whereas by my Order
of 11th May, 2001 the three Applicants herein were brought together under
umbrella of one cause number, the anomaly that the stood hidden was that
the case was only ready for hearing in regard to the first Applicant and
it was not ready for hearing regarding the added second and third Applicants.
The fact that consolidation of the cases was allowed did not mean that
the 2nd and 3rd Applicants were suddenly advanced to the stage of being
ready to be heard, as the combined affidavit of service had lied when at
represented that their Notices of Motion had been served too.
Proceeding therefore to hear the applications of all three Applicants
as if all their causes had been duly notified to the Respondent through
effective service of Notices of Motion was, in so far as the 2nd and 3rd
Applicant’s positions of this case are concerned, quite a prejudicial step
vis-a-vis the Respondent who was not aware that these two too had commenced
proceedings against it and that they were being heard that day. I
am amply satisfied that the prejudice suffered by the Respondent in this
respect is the direct consequence of the tabling of an affidavit before
this court vouching for effective service when the files of the two Applicants
bear no sign of any issue of process, and in particular no sign of issue
of Notice of Motion beyond obtaining the O 53 rule 3 Rules of Supreme Court
leave on 27th April, 2001.
The hearing in respect of the second and third Applicants having been
an irregular one, now that I have discovered it, I cannot honestly proceed
to make any determination in respect of it. To hear a party in the
absence of his/her named opponent on the basis that the opponent was served
with relevant notification of proceedings when the proof of service proffered
to the court is in fact a sham, in my view, amounts to such a fundamental
defect in procedure as render such a hearing a nullity. I accordingly
feel that this hearing of the second and third Applicants in this case
in the absence of the Respondent amounts to such a step in these proceedings
as deserves not to be accorded any effect.
I note that Order 2 rule 1(2) of the Rules of Supreme Court gives this
court wide powers as regards what it can do when faced with a situation
like the present. Having evaluated the defect as I have done above
I find it only fair that of my own motion I wholly set aside that portion
of the hearing which I hereby do, and that I stop short of proceedings
to any adjudication on it so as not to compound the irregularity.
I definitely believe that the Respondent is entitled to this setting aside
of that hearing in these proceedings ex-debito justitiae and does not have
to be put to the trouble of having to apply to set it aside at a later
stage now that the defect is glaringly obvious.
There now therefore only remains the hearing in respect of the 1st Applicant
for consideration. With the weight of the irregularity just discovered,
which was effectively concealed by the exercise of consolidation, in respect
of the second and third Applicants still very fresh on my mind, I am solely
tempted to as well revaluate the foundations on which I sanctioned the
hearing of the 1st Applicant’s matter. To me at the time the matter
was called, i.e. before consolidation I was satisfied that the matter having
been specifically adjourned to that day and personal service, per affidavit,
having been effected eight days prior to the date of hearing, inclusive
of the day of service, that hearing could proceed if the Respondent did
not bother to react to the notification.
Now with benefit of revisiting and reassessing the scenario on the
date of hearing, it transpires that what is normal and acceptable notice
of proceedings in our day to day hearings of civil causes (usually seven
days) is not necessary normal notice in the case of Judicial Review proceedings.
The notice the 1st Applicant effected on the Respondent and on basis of
which I directed that her matter could proceed to hearing thus for re-examination,
if only for me to be fully satisfied that the hearing done stands on solid
and sound foundation before I proceed to the determination of her complaint.
The fact that the second and third Applicants managed to present their
cases, which procedurally were not yet ripe for hearing, through the back-door
by, as it were, hitch-hiking on the back of this served Notice of Motion,
makes it imperative that the service of the material motion itself be re-tested
for its own soundness.
The beginning point in this exercise is O53 rule 5(4) of the Rules of
Supreme Court which provides that:-
“Unless the court granting leave has otherwise directed, there must
be at least 10 days between the service of the Notice of Motion or summons
and the hearing.”
It is moot point in this case that from the date the affidavit indicates
Esther Dzimbiri Phiri’s Notice of Motion was served, i.e. 4th May, 2001,
and the date of hearing, i.e. 11th May, 2001 there did not elapse a minimum
of 10 days. I have already held above that even counting the date
of service the days that elapsed only come to eight in number. The
question that consequently behooves the mind is whether it is open in the
circumstances to hold that the court that granted leave herein directed
otherwise in the spring of the provision and that thus it abridged the
time of service to less than the 10 days normally required.
As mentioned at the outset, leave in the case of the 1st Applicant was
granted by Hon. Mwaungulu, J. on 6th April, 2001. Looking at the
Order he made and at the ex-parte application before him, there was neither
a prayer for nor an Order abridging or extending the 10 days gap prescribed
by Order 53 rule 5(4) herein between service of Notice of Motion and hearing.
If we were to go by the Order of Mwaungulu, J. therefore as against the
material provision, the correct conclusion would be that 10 clear days’
notice was essential and unavoidable in this case.
It will also be recalled, however, that this matter was, subsequent
to the grant of leave, on 3rd May, 2001 just called before Hon. Tembo,
J. who adjourned it to 11th May, 2001. The service of Notice of Motion
now under scrutiny which was effected the following day was done in obedience
to this Order of adjournment. There was, however in this Order, no
specific reference to the minimum period to be satisfied for the achievement
of effective service, but it can be implied, I believe, that the judge
fixed the date 11th May on 3rd May taking it that he was allowing enough
room for the Applicant to effectively serve her Notice of Motion this time
round after the abortive or doubtful Easter time service. This in
consequence brings in the uncertainty that since the period between 3rd
and 11th May was already less than 10 days in duration, whether it can
be assumed from this that by implication this adjournment was in effect
abridging the 10 days clear notice requirement covered in the rule.
If it can be so assumed, then service for eight days may have been legitimate
to bless the hearing that followed. If however, it cannot be so assumed,
then that service too fell short of legal requirements and that would end
up colouring the hearing that followed as an irregular hearing also.
A point worth digesting here is that Order 53 rule 5(4) of Rules of
Supreme Court refers to “...the court granting leave...” as the one having
power to alter the 10 clear days’ notice requirement. If the provision
were rather warded “...the Judge granting leave...” it would have been
very clearly understood in this case to refer to Hon. Justice Mwaungulu.
As we have found that that Judge did not at all interfere with the requirements
of the above rule, this point would have been easily settled. Since,
however, the provision uses the word “the court” depending on whether it
is simply meant to meant “High Court” then regardless of whether it was
Hon. Justice Mwaungulu, or Hon. Justice Tembo sitting, it would in any
such event be the High Court that sat. One may therefore wonder whether
when reference is made to the court that granted leave making an otherwise
Order it could simply and correctly just mean “the High Court” without
need of identifying the individual Judge who constituted the court at any
material time. Should this be the case then there would have been
room for the said court, regardless of which Judge sat on 3rd May, 2001,
to make an otherwise Order under O53 rule 5(4) changing the 10 clear days
notice requirement to such other duration of time as it thought fit in
the circumstances of this case.
It is unfortunate that under Order 1 rule 4(2) of Rules of Supreme
Court the definition of “Court” is so open that it does not quite help
us for purposes of resolving this issue. The word as per that definition
means the High Court or any one or more judges thereof and even extends
to Masters Registrars. Be this as it may, however, whether “the Court”
in this provision refers to the particular judge that granted leave or
to the High Court generally, what is significant is that both the Orders
of Justices Mwaungulu and Tembo made no reference to Order 53 rule 5(4)
of the Rules of Supreme Court. Justice Mwaungulu simply granted leave
and stopped there and so he did not affect the operation of the rule.
Justice Tembo, moved about the service alleged to have been effected over
the Easter holidays, merely selected a date a little more than a week ahead
and set down the case for 11th May, 2001. An honest assessment of
this situation leads me to the irresistible conclusion that neither of
these Honourable Judges meant to affect nor in fact did affect the application
of O53 rule 5(4). Therefore for service on the Respondent to be deemed
effective, there was need for at least 10 days to elapse between the date
of service of the first Applicant’s Notice of Motion and the date of its
hearing. On the adjournment that was granted between 3rd and 11th
May, 2001, achieving this minimum standard was practically impossible even
if the 1st Applicant had endeavoured and succeeded to effect service on
the very 3rd May, 2001.
This therefore takes us back to Order 2 of the Rules of Supreme Court
which is on the subject of non-compliance with the Rules. In the
case of the 1st Applicant, rule 1 of that Order would render irregular
the hearing held on 11th May, 2001 after lapse of only 8 days from date
of service instead of the same taking place after 10 clear days from the
date of service. It is now obvious to me that both Mr Nyimba, of
Counsel for the 1st Applicant, and we did not pay the attention we should
have paid to O53 rule 5(4) on 11th May, 2001. Focusing on the standard
time of service in civil cases, which is normally 7 days, when Mr Nyimba
proved of service of 8 days age, I had no difficulties with agreeing that
he could present his client’s case as per his prayer, noting that the Respondent
was absent and had not sent in any excuse for the non-attendance.
As the rules stand, however, the Respondent did not have to attend.
Equally the Respondent did not have to send in an excuse for non-attendance
because under the particular rule governing service of Notice so Motion
in Judicial Review Proceedings the Respondent was not yet deemed to have
been served by that day, and so it was under no obligation to react to
Order 2 rule 1(2) of the Rules of Supreme Court, as earlier seen, confers
on the court wide powers as to what to do in event of non-compliance with
rules leading to an irregularity like the present one. At the highest
level the court can set aside the proceedings or any step in them affected
by the non-compliance and at the lowest level it can made such order dealing
with the proceedings generally as it thinks fit.
I must hasten here to point out that the fault attending the 1st Applicant
notification of her cause to the Respondent is much lighter than that which
attended the notification of the causes of the 2nd and 3rd Applicants to
the Respondent as already discussed above. Whereas in the situation
of the other two Applicants their very files bore no indication of issue
of the Notices sworn to have been served, in this case the file itself
bears witness to the issue of the documents sworn to have been served and
the only shortfall is on the number of days that should have elapsed before
hearing could take place. Effort in this case was made by the Applicant
to effect service except it was legally inadequate effort in point of time.
The next question for consideration in the circumstances is one concerning
the effect of this irregularity. An irregular step or Order in any
proceedings does not change its status merely by leaving it uncorrected.
(See Note 2/1/1 under Order 2 rule 1 R.S.C.). Having discovered and
acknowledged that it was irregular to hear the 1st Applicant’s case before
the Respondent had 10 clear days’ notice of her case, even though the shortfall
was in respect of only a few days, the situation will not be cured by merely
turning a blind eye to the fault and proceeding as if there is no irregularity.
At this point it is worthwhile to recall to mind the initial steps the
rules have laid down for Judicial Review Proceedings. In a normal
Judicial Review case the initial process is an ex-parte application for
leave to commence such proceedings. By its nature this application
is handled by the court in the absence of the prospective Respondent.
Thus whether leave is granted or refused, at that stage the intended Respondent
is ignorant and possibly even unsuspecting of what is going on.
With this at the back of the mind the importance of the first notification
to the Respondent absent the Judicial Review to come through Notice of
Motion, which is the next step in line, cannot be overemphasized.
Looked at in this way it makes sense that the rules had to depart from
the usual period of service and allow for at least 10 clear days before
hearing. Obviously the rationale behind this must be that not only
should the Respondent know that a case has been opened against him, but
that he should prepare for the hearing that by this time has already been
set down. As seen in this case, the first attempted notification
of the 1st Applicant’s cause on the Respondent over the Easter holidays
was doubted by the Hon. Justice Tembo. I have to that added the further
discreding factor that the attempted service was via Couchline Mail which
has no governing rates under our law, in which case we cannot be certain,
if at all, if the documents sent did ever reach the Respondent. The
service on the Respondent on 4th May, 2001 thus in reality after discounting
the Easter attempt, became the first notification.
To blame the Respondent for not attending and to proceed to hear the
1st Applicant in its absence, as happened in this case, when in fact the
law still entitled the Respondent to a few more days of digesting the case
raised against it before effective service could be deemed was to take
an irregular step in the proceedings. If Counsel was aware of this
shortfall on effectiveness of this service but deliberately urged me to
hear the case then he was guilty of misleading the court. I suspect
however that both he and me were applying the standard period of service
we apply to notices of hearing and in the course of that, through oversight,
neglected to take into account the O53 rule 5(4) above - cited which was
directly and peculiarly applicable in this case.
All in all the net result is that as at the time the 1st Applicant presented
her case, although the papers disclosing the case she had lodged with the
court against the Respondent had by then no doubt reached the said Respondent,
legally the notice was insufficient on account of the time set down in
the rules. Due to this the 1st Applicant was not that day entitled
to be heard, let alone to be heard in the absence of the Respondent.
I am thus of the view that proceeding to a determination of her application
therefore will rather compound than cure the irregularity committed in
Much therefore as I have described this present irregularity as lighter
than the one first discussed in respect of the other two Applicants, I
must say, however, that as this was strictly speaking supposed to be the
first notification of the case on the Respondent, the imperfection in service
turns the hearing that followed into a defective step of fundamental weight.
Thus like in the case of the other although the irregularities have different
weights, two Appellants, I believe it would be grossly wrong for me to
proceed to a determination of the 1st Applicant’s cause, well knowing now
that the non-attendance of that party on 11th May, 2001 cannot legally
be held against it. In consequence I must, I think, of my own motion
set aside the hearing I held in respect of the 1st Applicant’s application
on grounds of irregularity under Order 2 rule 1(2) of the Rules of Supreme
Court. Indeed as was the case when I set aside the hearings of the
applications of the 2nd and 3rd Applicants, again in this case I am convinced
that the Respondent is entitled to this relief ex-debito justitiae.
For the avoidance of doubt what this ruling amounts to in a nutshell
is that there has been no hearing of the three Applicants’ applicantions
for Judicial Review now consolidated in this one case. Such hearing
as took place on 11th May, 2001 was bad for irregularity and has accordingly
been set aside by the court of its own motion. The Applicants, if
minded to launch a proper hearing of their matter, my well opt to reflect
on the shortfalls highlighted in this ruling. The Respondent not having
attended court on 11th May, 2001 and not having done anything before or
on that date in purported obedience of or reaction to the Notice of Motion
herein, the question of costs does not, as I see it, arise. I accordingly
make no order in that regard.
Made in Chambers this 11th day of June, 2001 at Blantyre.