IN THE HIGH COURT OF MALAWI
CIVIL CAUSE NO. 3054 OF 2000
CORAM: HON. JUSTICE A.C. KAPANDA
Makuta, of Counsel for the Plaintiff
Naphambo, of Counsel for the Defendant
Selemani, Official Interpreter/Recording Officer
In the Originating Summons before this court, issued on 25th September
2000, the Plaintiff is seeking an order from this court for the removal
of a caution registered by the Defendant on Title Number 55 in the City
of Blantyre. There is attached to the originating summons an affidavit
in support of the Plaintiff’s application. It is sworn by the Plaintiff.
There is a notice of intention to contest these proceedings filed by
the Defendant on the 3rd day of October 2000. The Defendant is opposing
the Plaintiff’s application and to that end there is an affidavit in opposition
been sworn and filed by a Mr McDonald Chokani on 21st March 2001.
As noted above the evidence in these proceedings is by way of affidavits.
The deponents were not cross examined on the contents of their affidavits.
The Plaintiff’s affidavit has the affidavits of the vendors of the
land, the subject matter of these proceedings, attached to it. It
is observed, though, that the estate agent who dealt with both the Plaintiff
and the Defendant in connection with the land herein has neither sworn
an affidavit or given viva voce evidence but yet what the Plaintiff and
the Defendant are saying regarding the separate transactions they entered
into with the estate agent are different. In particular there are
two opposing arguments that have been advanced with regard to the type
of authority that the estate agent had viz whether or not he had authority
to make a binding contract on behalf of the vendors. It is rather
unfortunate that there is no evidence on record showing the terms of the
agency agreement between the vendors and the estate agent. Evidence
from the estate would have gone a long way in assisting the court coming
to a proper conclusion in this regard. Since there was no cross examination
of the deponents, and that the contents of these affidavit should be accepted
as correct, it therefore follows that there are disputes concerning the
facts of this case.
Further, it is observed that there are other matters deponed by the
Plaintiff in her affidavit which, in my view, are inadmissible on the ground
that some are infringing the rule against hearsay evidence. In particular
paragraphs 6, 7, 9, 12, 22, 26 and 30 of the Plaintiff’s affidavit contain
hearsay evidence. By reason of the fact that this matter before this
court is a free standing lis such evidence is unacceptable in terms of
Order 41 rule 5 of the Rules of the Supreme Court - Exparte Dazir Omar
t/a Spider Corporation MISC. Civil Cause No. 3 of 2001 (unreported).
Law and Findings
In as much as the originating summons appears to be raising the issue
of whether or not the caution should be removed on the ground that it is
court’s finding, when one considers the affidavit evidence and the arguments
of both parties, that the following questions have arisen and require determination:
(a) whether or not the estate agent had authority to make a binding
contract on behalf of the vendors.
(b) whether or not title had passed to the Plaintiff at the time the
property was also offered to the Defendant.
(c) whether or not the vendors are liable to make good the deposit paid
by the Defendant to the estate agent before they can be allowed to transfer
title, in the land, to the Plaintiff.
(d) whether or not the money paid by the Defendant, to the estate agent,
should be returned by the vendors to the Defendant.
(e) who has a better claim to title in the land the subject matter of
(f) whether or not all the relevant parties to this matter are before
The above are just some of the issues that could require a decision
of the court if the dispute between the Plaintiff and the Defendant is
to be resolved. Moreover, the issues enumerated above, in my view,
show that this matter is a contentious one and that there are substantial
disputes of facts between the parties herein which, as already noted above,
would require determination by a court of law.
It is trite law, and I need not cite an authority for it, that an originating
summons is appropriate for commencing proceedings in which the sole principal
question at issue is, or is likely to be, one of construction or some question
of law and/or proceedings in which there is unlikely to be any substantial
dispute of fact.
The question that may be paused here is whether or not this matter
is a proper one that may be dealt with in an originating summons.
As already remarked above, and I repeat, it is evident from the arguments
of Counsel, and from the affidavits filed herein that the question of whether
or not the caution is unnecessary and therefore should be removed will
not settle the dispute between the parties for there are yet other questions
to be decided. I am of the view that these proceedings might have
been commenced by originating summons because of the fact that at the time
the originating summons was issued the matter in issue was only in respect
of the caution. But as matters have turned out, at the hearing of
this originating summons, there are other issues that must be resolved
as well. For this reason, it is my finding that the mode of commencement
of these proceedings is in appropriate. It is only proper, therefore,
that I should refuse to make the order prayed but in its place I will order,
pursuant to Order 29/8 of the Rules of the Supreme Court, that this matter
should be proceeded with as if same was commenced by a writ of summons.
It is so ordered that this shall be recommenced by way of writ of summons
the order sought by the Plaintiff is premised upon the fact that there
are, as already found above, contentious issues in this matter which can
only be dealt with in an action commenced by a writ of summons in which
the issues between the parties will clearly be in the pleadings under which
the parties can, if they wish, sick further and better particulars of the
matters alleged by their opponents, and in which there will be full discovery.
Indeed, it is my view that not all the relevant parties are before
this court considering that the vendors are not parties to these proceedings
thus it will be difficult for the court to decide on these other issues
that have arisen in this matter. It is a settled principle of law
that proper parties necessary for determining the question arising in a
case must be before the court to enable it settle the said questions -
Carr -vs- Stuart [1923-60]ALR. Mal. 17; Nakanga -vs- Automotive Products
Ltd, Pillane and Notcut (Overseas) Ltd 10 MLR 81. In my considered
judgment the application can be meaningfully disposed of, and all the questions
answered, it the vendors are made parties to these proceedings. They
can be made parties either as Plaintiffs or Defendants pursuant to Order
15 of the Rules of the Supreme Court this court is given very wide discretion,
in a case where there is a misjoinder and/or non-joinder of a party, to
order the substitution or addition of a competent party whom it may be
necessary to be added or substituted his order to enable the court to effectually
and competently adjudicate upon and determine all the questions that have
arised in a matter. The court can exercise this discretion without
an application without an application by either of the parties to add and/or
substitute a party - Apex Car Sales Ltd -vs- The Anticorruption Bureau
Civil Cause No. 3479 of 2000 (unreported); Nyasaland Tus -vs- Nkolokosa
[1961-63]ALR Mal 367. I have found that this application can be meaningfully
disposed of, because of the other issues involved, if the vendors are made
parties. I will therefore exercise the discretion, conferred on me
by the provisions of Order 15 of the Rules of the Supreme Court, and order
that the vendors and/or the estate agent be added as parties to the proceedings
that will be proceeded with by the Plaintiff as ordered above. The
Plaintiff shall be at liberty to either add the said vendors and/or the
estate agent as Plaintiffs or Defendants.
The proceedings are still continuing notwithstanding the fact that they
were a free standing lis and that the court has refused to make the order
sought by the Plaintiff. In the premises the costs of, and occasioned
by, this application shall be costs in the cause.
Pronounced in Chambers this 14th day of May 2001 at Principal Registry,