Silver Strikers Football Club v Civo Service United Football Club and Others (Civil Cause No. 45 of 2004) ((Civil Cause No. 45 of 2004)) [2005] MWHC 112 (01 November 2005);

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IN THE HIGH COURT OF MALAWI

LILONGWE DISRICT REGISTRY

CIVIL CAUSE NO. 45 OF 2004


BETWEEN

SILVER STRIKERS FOOTBALL CLUB ………………………………PLAINTIFF

AND

CIVO SERVICE UNITED FOOTBALL CLUB …………………… DEFENDANT

MTL WANDERERS FOOTBALL CLUB …… …………………….THIRD PARTY

FOOTBALL ASSOCIATION OF MALAWI …………………… FOURTH PARTY


CORAM : T.R. Ligowe : Assistant Registrar

Chioza : Counsel for the Plaintiff

Msiska : Counsel for the Defendant

Tembo : Counsel for the Fourth Party

RULING

The plaintiff commenced action against the defendant on 27th January 2004 claiming K850 000 due and payable to the plaintiff from the defendant being refund of transfer price for a player, one Joseph Kamwendo, which transfer deal failed when the player joined another club. The plaintiff further claims statutory collection costs in the sum of K110 000.


The court record shows the defendant acknowledged service on 17th February 2004 and then issued a third party notice on 26th February 2004, claiming indemnity of the plaintiff’s claim on the ground that the third party refused to pay the defendant the transfer price for the player. The defendant served its defence but the plaintiff applied to have it struck out and judgment entered under Order 18 rule19 RSC. The order was granted and judgment entered against the defendant dated 24th May 2004. On 5th May 2004 the third party issued a fourth party notice. This notice bears a Blantyre Magistrate’s Court stamp. But it appears it was placed on the court file court after the order of 24th May 2004. On 31st May 2004 the plaintiff was granted a garnishee order nisi against the defendant’s bankers. On 10th June 2004 the defendant obtained a judgment in default of the third party’s notice of intention to defend. On 29th June 2004 the third party filed a summons to set aside the default judgment returnable on 8th July 2004. Then there is an unsigned garnishee order absolute stamped at the CRM court at Lilongwe on 24th June 2004. On 18th August the defendant filed a summons to set aside the garnishee order absolute. On 6th September 2004 the defendant filed a summons under Order 14A rule 1 of the RSC for the court to determine the following questions-

  1. Whether in light of the order of the court of 10th June, 2004, the garnishee proceedings in this matter were properly commenced;

  2. Whether in light of the order of the court of 10th June 2004, the garnishee order nisi issued against the garnishee, Stanbic Bank is proper;

  3. Whether the garnishee order nisi remains regular considering that the same was not (and has not been) served on the defendant;

  4. Whether in light of the order of the court of 10th June 2004, garnishee proceedings ought not to be commenced against an intended garnishee indebted to the Third Party;

  5. Whether the Fourth Party notice is regular

  6. If the fourth Party notice is regular, and in light of the order of the court of 10th June 2004, whether garnishee proceedings ought not to be commenced against an intended garnishee indebted to the Fourth Party; and

  7. As the Fourth Party has not acknowledged any court process and has not indicated its intention to defend this matter, whether they are not ultimately liable to the plaintiff in view of the payment made to them by the Third Party.


This application was adjourned several times and finally heard on 3rd May 2005. By that date two developments had taken place. The first, the Fourth Party acknowledged service and gave notice of intention to defend. The second, Counsel for the plaintiff informed the court that the player had been transferred from the defendant to the plaintiff and therefore the remaining claim is for collection charges which he said are covered by the garnishee order nisi. He then prayed for an order absolute as the garnishee has no objection in respect of K102 210.03 per their supplementary affidavit.


In addressing the court counsel for the defendant said that the irregularity of the garnishee order had been settled by what counsel for the plaintiff had just said. But counsel for the defendant argued against the Fourth Party notice the Third Party issued saying it was issued before the Third Party had given notice of its intention to defend, without leave of the court and after a default judgment had already been entered. Counsel brought this court’s attention to the Third Party’s application to set aside the judgment and said it is that particular application they contend has not to be proceeded with for the reasons stated.


Counsel for the Fourth Party observed and I concur that counsel for the defendant did not address the court on their application for disposal of the case on a point of law instead he emphasized much on the Third Party’s Fourth Party notice and application to set aside the defendant’s judgment. Counsel submitted that the Order 14A application be dismissed as a determination of the questions raised will not finally dispose of the case. He further prayed that the third and fourth party notice be struck out as it was issued without leave of the court as required by Order 16 rules 3 and 9.


Counsel for the third party did not attend court on this day and no reason for the non attendance had been communicated.


Counsel for the defendant has not advanced any argument on questions (a), (b), (c), (d), and (g) in his summons. I only have to determine on (e) and (f).


To begin with let me state that the objects of third party and similar proceedings are (1) to prevent multiplicity of actions and to enable the court to determine disputes between all parties to them in one action (per Lord Esher M.R. in Baxter v. France [1895] 1 Q.B. 591, p. 593); and (2) to prevent the same question from being tried twice with possibly different results (per Blackburn J. in Benecke v. Frost (1876) 1 Q.B.D. 419, p. 422). It should be noted that third party proceedings have and may have a life of their own, quite independent of the main action, so that for example, if the main action is settled, third party proceedings already begun can still proceed (Scott v. West Yorkshire Road Car Co. Ltd. [1971] 2 Q.B. 651) and conversely third party proceedings may be dismissed for want of prosecution even though the main action is still proceeding (Slade & Kempton (Jewellery) Ltd. v. Kayman Ltd. [1969] 3 All ER 786). The service of a third part notice creates a “lis” between the parties in question, which remains to be disposed of, if necessary by determination by the Court. Generally speaking, a defendant and a third party stand in relation to one another as if the defendant had brought a separate action against the third party.


Order 16 rule 1(2) provides that a defendant to an action may not issue a third party notice without the leave of the court unless the action was begun by writ and he issues the notice before serving his defence on the plaintiff. Rule 9(3) provides that a third party may not issue a notice under rule 1 without the leave of the Court unless the action in question was began by writ and he issues the notice before the expiration of 14 days after the time limited for acknowledging service of the notice issued against him. These rules are clear, third party or subsequent party notices may be issued without leave except that it must be in an action began by writ and in the case of a third party notice before the defendant serves his defence on the plaintiff while in the case of a fourth or subsequent notice, before the expiration of 14 days after the time limited for acknowledging service of the notice issued against the third or subsequent party. There is no talk of giving notice of intention to defend but the time limited for acknowledging service. In this case the third party had 14 days to acknowledge service of the third party notice. The defendant’s affidavit of service of the third party notice states the third party notice was served by post on 24th February 2004. So it is deemed to have actually been served on the third party seven days later i.e. 2nd March 2004. 14 days from that date gets us to 16th March 2004. The Third Party could issue the fourth party notice without leave within 14 days from 16th March 2004. It was issued on 5th May 2004, well after the 14 days and without leave. This was not proper and I could have set the fourth party notice aside under Order 16 rule 6 of the RSC had it not been for the fourth party’s notice of intention to defend given on 3rd May 2005. Order 2 rule 2 of the RSC provides that an application to set aside for irregularity any proceedings, any step taken in any proceedings, or any document or judgment or order therein shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity. The fresh step for purposes of this rule is one sufficient to constitute a waiver of the irregularity. It was held in Boyle v. Sacker (1889) 39 Ch. D. 249, C.A. and Fry v. Moore (1889) 23 Q.B.D. 395 C.A. that steps taken with knowledge of an irregularity, with a view to defending the case on the merits will waive irregularities in the institution or service of proceedings, since the could only usefully be taken on the basis that the proceedings were valid.


It therefore means in this case that, there is the main action between the plaintiff and the defendant, where a judgment was entered after the defendant’s defence was struck out, which judgment still stands as against the defendant and has to be executed. There is also the action between the defendant and the third party, where a default judgment was entered and still stands. And there is the action between the third party and the fourth party where the fourth party has just given its intention to defend.


As all the said actions are independent of each other, the plaintiff can execute on the defendant for the judgment entered and the garnishee order nisi is hereby made absolute in respect of the K102 210.03. As for the third party action there is a default judgment that was entered which the third party has applied to set it aside. The application has not been heard and determined and the judgment still stands. It has not been stayed either. On the fourth party action the fourth party has just given notice of intention to defend. The parties must take it from there.


The defendant is ordered to pay costs for the plaintiff. As for the third and fourth party actions, costs are in the cause.


Made in chambers this ………….. day of November 2005.



T.R. Ligowe

ASSISTANT REGISTRAR