A waiver is the intentional, voluntary and unilateral act of one person that results in the surrender of a legal right. The giving up of a right may either be by an express statement or by conduct. The key issue for a court reviewing a claim of waiver is therefore whether the person intentionally, voluntarily and unilaterally gave up a right.
The events giving rise to the preliminary objection can be outlined as follows: On 31 October 2016 a specially endorsed writ was issued by this Court commanding the defendants to within 21 days of service of the writ on them to satisfy the claim or return to this Court acknowledgement of service stating therein whether the defendants intended to contest the proceedings or not? On 16 November a notice of acknowledgement of service filed by the defendants signifying their intention to contest the proceedings was issued by this Court, followed by a defence and counterclaim issued by this Court on 28 November 2016. On 30 November 2016 the defendants filed a summons for Security of Costs of proceedings on the basis that the plaintiff is ordinarily resident out of the jurisdiction. On 27 January 2017 the plaintiff filed a notice of summons for Judgment on Admission and Summary Judgment. On 1 February 2017 the defendant filed a notice of preliminary objection to use an affidavit of one of the deponents in the application for Summary Judgment and a further application to cross examine the said deponent, issued on the same day. On 7 February 2017 the defendants filed a notice of preliminary objection to the jurisdiction of the Courts in Malawi.
Counsel for the defendants swore an affidavit in support of the application objecting to the jurisdiction of this Court. The main objection was to the effect that the parties specifically agreed in the Termination Agreement that the Courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the said Agreement.
In response counsel for the plaintiff argued that the defendants had taken out their objection way out of time considering the time lapse between the acknowledgement of service and intention to defend to the date of the preliminary objection. Secondly, the defendants took active steps in the action by suing the plaintiff in the counter claim, which suit gave jurisdiction to this Court. Thirdly that the conduct of parties in the action point to the fact that they both waived the jurisdictional clause. Fourthly, that there was no special circumstances that would render any prejudice if the matter was heard before this Court.
The factors to consider when faced with a case of this nature have already been outlined above. It is clear in this matter that the intentional, voluntary and unilateral conduct of the defendants in