IN THE HIGH COURT OF MALAWI
Misc Civil Cause No. 41 of 2013
JOUBERTINA FURNISHERS (PTY) LIMITED
t/a CARNIVAL FURNITURES PLAINTIFF
LILONGWE CITY MALL DEFENDANT
JUSTICE D. F. MWAUNGULU
Gondwe, Of Counsel, For the Plaintiff
Mwanyongo, Official Court Interpreter
In this matter, there is a bit of urgency and emergency in the interlocutory injunction that the plaintiff seeks. The applicant appeared before the Registrar who, apparently, was disposed to abridge the time as long as a judge can hear the matter on Monday. The applicant, not opting to have an injunction without notice, wants this court to abridge the time in a manner that a Judge can hear the matter with the other present on Monday.
I, instead, order that the matter be handled as an ‘opposed ex parte application’ (under the Rules of the Supreme Court, 1965) or ‘opposed applications without notice (under the Civil Procedure Rules 1998). There is some serious discussion based on the way section 29 of the Courts Act is amended about whether it is the Rules of the Supreme Court 1965 or the Civil Procedure Rules 1998 that apply to the High Court in Malawi. These discussions arise because the 2004 amendment mentions ‘Rules of the Supreme Court, 1999’ (in England). There have never been ‘Rules of the Supreme Court 1999’ in England. In England, there were ‘Rules of the Supreme Court 1883’, ‘Rules of the Supreme Court 1965’ and, replacing the latter Rules, ‘Civil Procedure Rules 1998.’
The practice of ‘opposed’ ex parte applications however supersedes the Rules of Court. Under it, the defendant, to assist the judge, attends the ex parte hearing either of the defendant’s own accord or at the tacit or latent invitation of the plaintiff. In Pickwick International Inc. (GB) Ltd v Multiple Sound Distribution Ltd  3 All E.R. 384 the court held that a successful defendant could be awarded costs. The practice is available under the Civil Procedure Rules 1998 in the Supreme Court Judicature in England: see the authors of Civil Procedure Volume 2, Sweet & Maxwell, 2001 ed. Paragraph 1-35(5:21):
“These are applications of which proper notice has not been given to the respondent but which are made in the presence of both parties in advance of a full hearing of the application.”
I, therefore, order that the plaintiff recourse the procedure.
Made this 18th Day of April 2013