Nyirongo v Society for the Advancement of Women (725 of 2004) ((725 of 2004)) [2006] MWHC 88 (23 March 2006);

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IN THE HIGH COURT OF MALAWI

LILONGWE REGISTRY

CIVIL CAUSE NO 725 OF 2004


BETWEEN :


CHIZASO E. NYIRONGO ..………………….. PLAINTIFF


-and-


SOCIETY FOR THE ADVANCEMENT

OF WOMEN .…………………………………….DEFEDANT



CORAM : HON. JUSTICE A.K.C. NYIRENDA


Nyirongo; Counsel for the Plaintiff

Kalasa; Counsel for the Defendant

Njirayafa; Court Interpreter




J U D G M E N T

HON. JUSTICE A.K.C. NYIRENDA



This is an appeal from the Learned Assistant Registrar by the defendant who is dissatisfied by an order of that court granting the plaintiff sums of money pursuant to the plaintiff’s action against the defendant by writ of summons which was eventually determined on application by the plaintiff for a summary judgment.


The background to the matter, in so far as it is relevant to the proceedings and this appeal, is as follows. The plaintiff was in the employment of the defendant as Legal Officer. He was engaged since March 2003 at an annual salary of 18,600 Euros. It would appear that at that same time the plaintiff was contemplating going outside the country for postgraduate studies. His contemplation materialized soon because in July 2003 the plaintiff wrote the defendant requesting study leave.


On the 23rd July 2003 the defendant’s Executive Director wrote accepting that the plaintiff could proceed on study leave. By that same letter the Executive Director refers to a discussion she had with the plaintiff on some money that was owing to the plaintiff for the months of May, June and July 2003 in respect of salary and professional fees. The total amount according to that letter, was Euro 4107.50. The letter is on record as Exhibit “CEN2.”


The plaintiff’s case is that he was also not paid K45,000.00 in respect of telephone units and fuel expenses.


According to the plaintiff’s statement claim the defendant has so far paid only part of the Euro 4107.50. The K45,000.00 has not been paid. Specifically the statement of claim is for Euro 1569.46 and K45,000.00 which have to date not been paid. As usual the plaintiff seeks interest, costs of the action, collection costs and surtax.


For the matter to come up on appeal, as it does, it is because of the course it has taken since the statement of claim was placed before court.


By writ of summons the plaintiff brought the action on the 14th October 2004. A defence was filed on the 16th November 2004. The defence was virtually a general denial, perhaps because at that time the endorsement on the statement of claim was not sufficiently particularized. Within that same month however the plaintiff, by a further endorsement, filed a detailed statement. The defendant diligently filed a defence on 7th December 2004. The defence contended that the sum of Euro 1569.00 had already been paid and that the K45,000.00 was being denied because the plaintiff had not submitted supporting documents to the defendant.


Almost immediately following the defence, on the 8th of December the plaintiff made an application for summary judgment because in his view the defence was a sham, a general denial and did not amount to a denial of liability. There were several reasons why the plaintiff was of the firm view that the defendant was not and could not have been denying liability.


In his affidavit in support of the application for summary judgment the plaintiff made reference to and attached correspondence between him and the defendant. One on them is a memo where the defendant, by its Finance and Administration Office, confirmed that K45,000.00 was owing to the plaintiff in respect of telephone units and fuel. The memo is dated 5th August 2003, Exhibit “CEN1”. The other reason is that according to the defendant itself the plaintiff was paid K348408.00 in full and final settlement of salary arrears. By his affidavit the plaintiff demonstrates that the amount paid by the defendant is infact far short of the sum of Euro 4107.50 using the exchange rate of Euro and Kwacha of 1:128 respectively at the material time.


On this analysis the plaintiff was of the view that the defendant was not denying liability and that, if anything, it was only exact amount owing that was being contested.


It is after this application that cracks started to show in the defendant’s case. For some undisclosed reason the defendant, who had all along been swift, decided to go into a slumber.


The summons for summary judgment were set for hearing on the 25th of February 2005. The defendant was served on 1st February 2005. Service was personal. By the time of hearing before the Learned Assistant Registrar on the date set the defendant had not responded to the application. Counsel for the defendant appeared late that morning and urged the Assistant Registrar to hear him even without having responded to the application. In a brief ruling the Assistant Registrar found for the plaintiff in the absence of an affidavit in opposition to the summons from the defendant. The ruling was pronounced at that same sitting, obviously in the presence of counsel for the defendant.


It is here that one gets the impression that the defendant virtually gave up on this case especially on the question of liability. Upon obtaining summary judgment the plaintiff applied for and obtained a garnishee order. The defendant moved in quickly and sought to challenge the garnishee order. There was no indication that the defendant would still contest the summary judgment itself. The case then moved on to taxation of costs The costs were contested.


On the 1st April 2005 the defendant filed a notice of appeal. Obviously this notice was way out of time.


Order 58 r 1(1)(3) provides:


(1) Except as provided by rule 2, an appeal shall lie to a Judge in Chambers from any judgment, order or decision of a master…..


(3)Unless the Court otherwise orders, the notice must be issued within 5 days after the judgment, order or decision appealed against was given or made and must be served within five days after issue and an appeal to which this rule applies shall not be heard sooner than two clear days after such service.


Order 58/1/6 on enlargement of time says ‘time limited for appeal may be extended by the master, and the time limited by the master may be extended by the judge in Chambers after such time has expired or the five days for appealing have elapsed,’ see Burke v Rooney (1879)4 CPD 226. It is further said where no explanation, excuse or reason is given for the delay in issuing the notice of appeal, the Judge may refuse to extend the time, see Revici v Prentice Hall Inc. [1969]1 WLR 157. This rule should be read together with Order 3/5/6 of the Rules of the Supreme Court where it clearly stated that:


An application for extension of time for appealing to a Judge in Chambers should be made at the same time as the appeal, and the extension asked for in the notice of appeal.


I have listened with particular care to what Mr Kalasa has submitted on behalf of the defendant. He does not want to be drawn into explaining the delay and has not made any remarks in that regard. Thus apart from the notice of appeal not alluding to extension of time there is nothing at all, even orally, to explain the delay.


It has been said:


The rules of court must, prima facie, be obeyed, and that in order to justify a court extending time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise, the party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules, which is to provide a time table for the conduct of litigation. See Ratnam v Cumarasamy [1964]3 All. E.R. 933 at 935.


Thus far this court is constrained from entertaining the defendant’s application.


At this state I might as well say this. Even if I were to consider the actual grounds upon which the defendant seeks to appeal, I would still have serious difficulties with the defendant’s submission. My explanation is this. Clearly from the totality of counsel’s submission what emerges is that the money which is said to have been paid to the plaintiff does not amount up to Euro 4107.50. The defendant says whatever remained of this amount was income tax which was paid to Government by the defendant on behalf of the plaintiff. This submission has two serious problems.


The first one is that the letter that I have referred to earlier Exhibit “CEN2”, from the defendant to the plaintiff, which the plaintiff used in support of his application for summary judgment is clear and talks about the amount to be paid to the plaintiff as Euro 4107.50. Secondly it is the difficulty that everyone has with the document that has been brought by counsel for the defendant as being the document showing what income tax was paid in respect of the plaintiff. The document contains a lump sum payment of K875,250.00. There is no breakdown to show in what respect the tax was for.


I am conscious of the fact that I am at this point not to deal with the matter as if it was a determination after hearing the parties; but this really is to say if this piece of information was so critical as the defendant portrays it, it should have been presented with some degree of particularity and substance even for purposes of the present application.


Let me reiterate however that the observations I make with regard to the tax document are for the sake of completeness. To me this appeal is really against the wall on the basis that it comes too late and without an application seeking extension of time.


The appeal is therefore dismissed with costs to the plaintiff.









MADE in Chambers at Lilongwe this 23rd day of March 2006.





A.K.C. Nyirenda

J U D G E