IN THE HIGH COURT OF MALAWI
MATRIMONIAL CAUSE NO. 1 OF 2001
SUSAN CHABUKA BANDA....................................PLAINTIFF
THOKOZANI MANYIKA BANDA..........................DEFENDANT
CORAM: HON. JUSTICE A.C. CHIPETA
Mr Kasambara/Jumbe, of Counsel for the Plaintiff
Mr Msisha, SC, of Counsel for the Defendant
Mrs Katunga, Official Interpreter
On 9th January, 2001 the plaintiff took out an Originating Summons against
the defendant seeking, apart from the costs of the action, custody of Manyika
Thokozane Banda. Attached to the Originating Summons was a form of
acknowledgment of service and a petition. There is an endorsement
on the Originating Summons showing that service of the same was effected
on 12th January, 2001.
The record also bears an undated acknowledgment of service signed by
M/s Nyirenda and Msisha on behalf of the defendant including the defendant’s
intention to defend the action. On 26th January, 2001 the matter
was set down for 15th February, 2001 for hearing in Chambers and service
of this notice was effected on the defendant’s lawyers on 2nd February,
On the appointed day only Mr Kasambara and his client, the plaintiff,
were present. On basis of proof of service on the defendant’s lawyers
I proceeded to hear the Originating Summons in the absence of the defendant.
After hearing Mr Kasambara’s arguments in the matter and after recording
viva voce testimony from his client I adjourned the matter to 12th March,
2001 for ruling.
Eight days after this hearing and well before the ruling on it was due
the defendant’s Legal Practitioners filed a Notice supported by an affidavit.
The aim of this process was to apply to the court that the defendant’s
Legal Practitioners be allowed to file an affidavit in opposition to the
Originating Summons and that they be there heard prior to the ruling of
the court on the matter.
When this Notice came up for hearing Mr Msisha, SC, began by confessing
that he failed to attend court because he inadvertently overlooked the
appointment for 15th February, 2001. He however argued that despite
this procedurally there ought not to have been any hearing on that day.
Referring to Order 28 rule 1 of the Rules of Supreme Court it was Mr Msisha’s
stand that following acknowledgment of service, the plaintiff was supposed
within 14 days thereof to serve an affidavit in support of her application
and that hereafter the defendant would have had 14 days within which to
file an affidavit in response before the Originating Summons could be set
down for hearing. Mr Msisha, SC, thus submitted herein in the absence
of compliance with the mentioned intermediary steps was out of line with
procedure. The plaintiff, he said, upon keeping the appointment,
should have asked for an adjournment of the case so as to allow for the
filing of the relevant affidavits on the basis of which the court could
either base its decision or issue directions as to the further conduct
of the case.
Mr Msisha, SC, did however go much further than this with his arguments.
I do feel, however, that the extent he went to was not quite necessary
for purposes of his Notice. He touched on the customary law governing
the marriage the parties herein had contracted, proceeded to raise questions
concerning the propriety or otherwise of taking out the Originating Summons
in this court when the parties divorced in a subordinate court, and queried
whether this court would not need expert testimony on the material customary
law before it could determine the issue herein. These arguments,
it appeared to me, were more in line with the substantive hearing of the
Originating Summons than with an application to file an affidavit in opposition
and an applicant to be heard thereafter. Thus, save for mentioning
that these arguments came up, I do not think I need consider them any further.
What I need to focus on is whether the hearing I had on 15th February,
2001 was a legitimate one so that I should proceed to ruling on it or whether
it was indeed unprocedural as complained herein so that I should allow
time for filing of affidavits and then arrange for a fresh hearing date
so as to accord the defendant the opportunity he missed to be heard on
On the plaintiff’s part, Mrs Jumbe, of Counsel who in place of Mr Kasambara
appeared at the hearing of the Notice, challenged the defendant’s application
on the basis of Order 2 rule 2 of the Rules of Supreme Court. She
took the stand that an application to set aside for irregularity, such
as this one, ought to be by summons or motion and that the grounds of objection
must be stated within the summons or the Notice of motion itself.
She wondered whether the defendant’s notice complied with this procedure.
Her observation was that the application of the defendant was neither a
Summons nor a Notice of Motion and that it bore no irregularity on the
faces of it. She further observed that even the supporting affidavit
does not spell out the irregularities to entitle the defendant to the relief
sought. She indicated that although exchange of affidavits is referred
to them, it is not specifically pointed out that non-service of the same
is the irregularity complained of. Mrs Jumbe hereafter proceeded
to try and answer the questions of jurisdiction and of customary law raised
by Mr Msisha, SC, apart from seeking some interim relief for her client
in even of the defendant’s application succeeding.
I have already observed, however, that in raising these issues Mr Msisha
was actually, so to speak, abandoning his application and delving in presenting
substantive arguments against the Originating Summons in that in so doing
he was going beyond the ........of merely praying to be given opportunity
to file an affidavit in opposition so that he could then be heard at a
later date. I will accordingly save myself the trouble of further
reference to these excess arguments which were not necessary for purposes
of determining the Notice filed on behalf of the defendant.
Let me confess that when the Originating Summons herein was called
for hearing what was foremost in my mind were the provisions of Order 32
rule 5 of the Rules of Supreme Court. As will be noted under that
provision a court is free to hear a matter in chambers in the absence of
a party if satisfied that the absent party was duly served with Notice
of the time appointed. Now on examination of Order 28 of the Rules
of Supreme Court, which I did not then take into account, I notice that
although the Order 32 rule 5 I used, is specifically recognized as applicable
under Originating Summons Procedure, there were a few shortfalls attending
the particular Origination Summons before me which had a bearing on its
qualification or otherwise for hearing, well apart from the fact that it
had been served.
Be this as it may, I must mention that the argument advanced by Mrs
Jumbe as regards Order 2 rule 2 of the Rules of Supreme Court is quite
valid. It is not true as Mr Msisha, SC, argued in reply that that
provision is not applicable on account of the fact that he was not in this
case applying for dismissal of the plaintiff’s Originating Summons.
Order 2 rule 2, in my understanding, is of wide application and is not
confirmed to applications for dismissal only. It competently covers
applications to set aside for irregularity of any proceedings, any step
taken in any proceedings, or any document, judgment or order therein.
Now it is clear that in this case the defendant although pre-exempt.......
a ruling is all the same trying, alleged irregularity, to set aside the
hearing that took place on 15th February, 2001, which was a step in these
proceedings. I then quite fail to appreciate why Mr Msisha, SC, was
arguing that his client’s application was exempt from complying with the
demands of this provision. The truth of the matter is that Mr Msisha’s
“Notice” did not comply with Order 2 rule 2 herein Summons or Notice of
Motion bearing grounds of objection within itself and these requirements
it did not satisfy. Besides, an examination of the supporting affidavit
reveals that the defendant must have meant this affidavit. To be an all
- capturing document, rather than an affidavit strictly supporting
the Notice filed, hence its content of even depositions that fit for substantive
hearing of the Originating Summons.
Reverting to events attending the Originating Summons before I heard
it, the situation is as follows. Service of the Originating Summons
having been effected, within 14 days of acknowledgment of service by the
defendant, the plaintiff was under obligation to file affidavit evidence
(See O28/1A(1) RSC). The plaintiff did not file such affidavit evidence
on this case. There was, however, served along with the Originating
Summons, a petition, but this cannot be taken as a substitute to affidavit
evidence. Now in a way, although I think the plaintiff was at fault
in not filing the requisite affidavit evidence in this case, I equally
think that the defendant contributed to this fault. As I have pointed
out before, the acknowledgment of the defendant found on the court does
not bear any date. It was not filed and so it has no date stamp
and even Mr Msisha, SC, himself did not date it. In the circumstances
it becomes difficult to ascertain whether the defendant acknowledged service
within time and if so run for purposes of service of the plaintiff’s affidavit.
With an undated acknowledgment like this, a party can easily play hide
and seek in a case. As can be seen the plaintiff is therefore not
solely to blame for the absence of her affidavit induce as some place is
clearly attributable to the defendant on the point.
Now from whenever the 14 days was going to expire from the date of acknowledgment
of service of the Originating Summons by the defendant, per Order 28 rule
1A(4) the defendant was going to have 28 days within which to file his
own affidavit evidence, if he so deserved, and to serve the same on the
plaintiff. This in turn was going to entitle the plaintiff, if she
so wished, to serve further affidavit evidence in reply within a further
14 days. (See O28 rule 1A(5) R.S.C.). Next after this any additional
affidavit from the parties will only be entertained once the leave of the
court has been obtained. See O28/1A(6) R.S.C.). Order 28 rules 2
and 2 R.S.C. then hereafter govern the fixture of time for attendance of
parties before the court and for the issue and service of Notice of hearing.
Looking at the time-table set by Order 28 rule 1A of the Rules of Supreme
Court it is difficult to envisage an Originating Summons matter ripening
for hearing in a period falling short of a full month. In this case
only fourteen days elapsed between the day the Originating Summons was
served (i.e. 12th January, 2001) and the day the date for hearing was secured
and fixed (i.e. 26th January, 2001). Achieving this feat, I must
say, was a supersonic speed of getting the matter set down and I dare say
that it hardly left any room at all for the parties to fully comply with
the steps I have just dismissed above. Even granted the fault of
the defendant in not dating or filing his acknowledgment of service of
the Originating Summons, I must and do find that the plaintiff secured
her hearing date by jumping the gun, so to speak, and that this was quite
premature and done in disregard of the preliminary steps covered by Order
28 rule 1A R.S.C. The resultant scenario is that I heard the Originating
Summons herein before it was really due for hearing. The defendant
is thus quite justified in complaining that he has been deprived of opportunity
to be heard in this matter. The only problem with his complainant
is that it has been presented contrary to the dictates of Order 2 of the
Rules of Supreme Court.
I have acknowledged above that there was an irregularity in the early
fixture of the case before all preliminary steps had been taken.
The hearing of the Originating Summons was thus also irregular. To
his credit the defendant took steps to point this out at the earliest opportunity
and before taking any fresh step in the case. It thus cannot be said
that the defendant waived the irregularity. To this extent the defendant
was quite in compliance with Order 2 rule 2(1). The defendant however
failed to satisfy Order 2 rule 2(2) in not fitting his grounds of objection
within the Notice he filed. I have wondered whether this default
on the defendant’s part can be said to so prejudice the plaintiff that
on its account alone I should dismiss the defendant’s application.
In my judgment it does not achieve such level of prejudice.
Having help as I have done that the hearing I undertook on 15th February,
2001 was premature, justice requires that I set it aside and that I do
not proceed to ruling, which I do. The plaintiff has 14 days from
today within which to serve affidavit evidence in support of her Originating
Summons. Thereafter the parties are to be guided by Order 28 rule
1A as regards any further affidavits they might desire to exchange before
the matter is next set down for hearing. As regards cost of this
application I think the best order is to direct them to be in the cause
as the irregularities committed by both the parties are fairly well balanced
and I so direct.
Made in Chambers this 4th day of May, 2001 at Blantyre.