IN THE HIGH COURT OF MALAWI
MISCELLANEOUS CIVIL CAUSE NO. 92 OF 2001
(through his father and next friend
Fred H. Kajawo)....................................................................PLAINTIFF
MALAWI NATIONAL EXAMINATIONS BOARD...............DEFENDANT
CORAM: HON. JUSTICE A.C. CHIPETA
Mr Kauka, of Counsel for the Plaintiff
Defendant/Counsel - Absent
Mr Khondiwa, Official Interpreter
The matter herein commenced on 4th July, 2001 with issue of an Originating
Summons under Order 7 rule 2 of the Rules of Supreme Court. The said
O.7 rule 2 of Rules of Supreme Court provides for two types of inter
partes Originating Summons. The first is the Originating Summons
in Form No. 8 of Appendix A which does not provide for a fixed return date
while the other one is in Form No. 10 of the same Appendix which normally
provides for a return date. I take it that the plaintiff in this
case settled for the Form 10 type of Originating Summons, which is an expedited
one, in that his Originating Summons was on issue immediately for 30th
July, 2001, although in the form it appears it does not capture all features
of that type of Originating Summons.
The Originating Summons herein was filed together with a supporting
affidavit to which were annexed eleven exhibits. An inter partes
Originating Summons, even an expedited one, ought to provide for acknowledgment
of service by the defendant. The normal period allowed for this is
fourteen days from service of the Originating Summons. (See: O 12
rule 5(a) and Note 12/5/1 R.S.C.)
The present Originating Summons did not make any provision for acknowledgment
contrary to the format appearing in Form 10 Appendix A. It was also
not accompanied by a form of acknowledgment of service contrary to Order
10 rule 1(6) as read with O 10 rule 5 of the Rules of Supreme Court.
On the return date the plaintiff filed three documents before proceeding
to argue the Originating Summons. The documents filed were:-
(a) the consent of the next friend to act as such;
(b) the Certificate of a Legal Practitioner as to the next friend of
the infant plaintiff; and
(c) the affidavit of service of the Originating Summons.
Reflecting on all that has transpired in this case it strikes me that
this matter was heard before it was due and I am of the view that I will
only be perpetrating the procedural flaws in it if I proceed to decide
it as if all was well in it.
To begin with, as already pointed out, the Originating Summons did not,
as it ought to have, make provision for acknowledgment of service by the
defendant, and on service was not accompanied by the requisite form No.
15 of Appendix A as per O 10 r 5 of Rules of Supreme Court to enable the
defendant acknowledge the said service. Indeed on the return date
there was no acknowledgment of service. In terms of Order 28 rule
6 of the Rules of Supreme Court I needed first to be satisfied on the point
of failure to so acknowledge service before I could entertain the plaintiff’s
application for an Order affecting the defendant in this case. I
now think that I should not have allowed Counsel to argue on the Originating
Summons without giving this provision and Order 32 rule 5 deeper attention.
A question well worth asking in the circumstances may well be whether the
defendant’s failure to acknowledge service in this case (if so it is) is
or is not due to the fact that the plaintiff did not provide for such as
he was legally obliged to.
Leaving this aside the situation is compounded by the fact that as
per the affidavit of service filed first before the hearing, the Originating
Summons herein was served by post on 11th July, 2001. Under Order
10 rule 1(3) of the Rules of Supreme Court service by post is deemed effective
after the expiry of seven days from the date of postage if the documents
have not been returned by the post, undelivered. In this case, therefore,
the effective date of service of the Originating Summons was 18th
July, 2001, which was only twelve days before the return date of 30th July,
2001. The meaning of this is that by the time this matter was being
called for hearing the defendant had not exhausted its fourteen days of
grace before acknowledging service. Now in this case there is no
sign that the plaintiff made any applications or obtained any Orders to
abridge time. Order 28 rule 1A lays down an elaborate timetable of
how parties to an Originating Summons will exchange affidavit evidence
where they are so inclined. Bearing in mind this calender and the
fact that the plaintiff got a hearing date that fell two days short of
even the time permitted for acknowledging his Originating Summons it would
not be far fetched to say that the plaintiff, procedurally speaking, was
excessively in a hurry to be heard in this matter.
It is, as I have already indicated, my present view that this hearing
took place at a time the matter was not yet ripe for hearing. The
scenario at hand is that the plaintiff did not provide the defendant with
information, as he was supposed to on the Originating Summons, that acknowledgment
of service was necessary. He also did not, contrary to procedure,
provide the defendant with the requisite means to effect such acknowledgment
if so minded. Worse still the plaintiff on issue of the Originating
Summons obtained such a near date for its hearing that there was not even
enough time for the defendant to acknowledge its service within the time
permitted by the law, let alone time for a comfortable exchange of affidavit
enduce between the parties. The hearing was therefore bad and irregular.
Order 28 rule 4 of the Rules of Supreme Court provides for directions
by a Court. In particular O 28 rule 4(2) allows the court to give
such further directions as to the further conduct of the proceedings as
will secure the first, expeditions, and economical disposal of the same
where a court has not disposed of an Originating Summons at a hearing.
I heard this Originating Summons on 30th July, 2001 but did not altogether
dispose of it as a ruling was pended. I have found and held that
the hearing was premature and hurried and therefore irregular. In
the circumstances I feel that the defendant is liable to suffer a high
degree of prejudice as a direct consequence of the errors I have just pointed
out if I were to all the same first proceed with a determination of the
matter. Accordingly of my own motion under Order 2 rule 1(2) of the
Rules of Supreme Court hereby direct the setting aside of the hearing of
30th July, 2001. Further in terms of O 28 rule 4(2) I direct that
the plaintiff should amend his Originating Summons by making it compliant
with Form No. 10 in Appendix A of Vol. 2 of the Rules of Supreme Court
by providing for acknowledgment of service within 14 days of its service.
Further the plaintiff is to ensure that the appropriate acknowledgment
of Service form is served along with the Originating Summons on the defendant.
Lastly I direct the plaintiff to bear in mind the time limits envisaged
by Order 28 rule 1 A in securing a return date, if he remains inclined
to have such on issue of amended Originating Summons. I order accordingly.
Made in Chambers the 10th day of August, 2001 at Blantyre.