IN THE HIGH COURT OF MALAWI
PRINCIPAL REGISTRY
CIVIL CAUSE NO. 1553 OF 1994
BETWEEN :
BISHOP PHEKANI
................................ PLAINTIFF
-and-
MOSES PHEKANI (DECEASED)
.......... DEFENDANT
CORAM : CHIMASULA
PHIRI, J.
T.N.
Nyirenda of Counsel for the plaintiff
A.R. Osman,
Senior Counsel for the defendant
Mrs
Matekenya - Official Interpreter
RULING
The plaintiff has
applied to this Court for an order that two court records be introduced as part
of the evidence in this matter. The
records are MSCA Civil Appeal No. 4 of 1984 being an appeal against the
decision of the High Court in Civil Cause Bo. 430 of 1982 between M.B.
Phekani vs Bazuka and Company. The
relevant pages of the record are 119 and 120 where the evidence of M.M. Phekani
is recorded relating to business name for Moses Phekani and his brother Bishop
Phekani. The other is MSCA Civil Cause
No. 491 of 1981 between Bazuka and Company vs M.B. Phekani and Sons the
relevant pages are 29, 49, 50, 90, 108, 109, 110, 114 and the judgment of Banda
J as he then was.
Mr Nyirenda has
submitted that the general rule is that an admission can be given in evidence
against a party giving it and not any other party. He quoted Halsbury’s Laws of England, Third Edition Volume
15 paragraph 537 for the proposition that when a party sues or is sued
personally, any admission which he has previously made, even in a
representative capacity is evidence against him. The particular form in which an admission was made does not
generally affect its admissibility.
Generally any document which a party has signed or otherwise recognised,
adopted or acted upon, may be tendered against him as an admission. Vide: Evans Merthyr Tydfil Urban
Council (1889) 1 Ch. 241 CA. Moses
Phekani gave evidence in the two High Court cases. No doubt that in both cases he was emphatic that in the name M.B.
Phekani, M. Stands for Moses, B is Bishop, his brother. He disputed that B is his nephew. Moses Phekani said that he was running a
business.
In the alternative, Mr
Nyirenda submitted that should the Court hold that Moses Phekani did not make
any admissions, the same should be regarded as declarations against interest
where Moses Phekani declared that he was not alone in the business but with his
brother Bishop Phekani. Mr Nyirenda
argued that Fachi as Legal practitioner for Moses Phekani was an agent and when
submission amendment to name was made and ordered by the court, the same was
made on behalf of Moses Phekani. Mr
Nyirenda also submitted an admissibility of judgment. He referred to paragraphs 705, 706 and 708 of Halsburys Laws
of England, Third Edition, Volume 15.
He said that a judgment is evidence if it relates directly to an issue
decided on. Mr Nyirenda states that the
plaintiff is not a stranger since he is part of the M.B. Phekani and Sons.
Mr Nyirenda closed his
submissions moving the court to admit the record of proceedings and the
judgments therein.
Mr Osman opposed the
application. Firstly Senior Counsel
indicated that the defendant died in 1999 and the declaration if any would be
hearsay and this cannot be accepted under any of the exceptions. He relies on paragraphs 533 and 535 of Halsbury’s
Laws of England , Third Edition, Volume 15. Mr Osman argued that consideration of the record of proceedings
and judgment should be focused in the context of what the deceased defendant
said. Secondly what the submissions of
his lawyer was and lastly, the admissibility of the judgments. Mr Osman submitted that since the deceased is
dead the record of proceedings cannot be admitted and the Court should bear and
confine itself to the circumstances under which the admission was made.
Furthermore, when Moses
Phekani made those statements, he was not an agent of Bishop Phekani. I have carefully considered this argument
and with respect to senior counsel I would not accept his submissions. It is clear that when Moses Phekani made
such statements he was under oath to tell the court the truth. There is nothing to show that Moses Phekani
was under duress or suffering from infirmity of the mind as to diminish his
appreciation of these statements in his own viva voce evidence. If that be the case, despite his demise, the
action is continuing against his personal representatives and these should
effectively challenge these statements if any.
I would not say that these statements in the proceedings in question are
hearsay. I would order that the
statements of Moses Phekani in those proceedings be admitted in evidence.
The next issue taken by
Mr Osman relates to submissions of counsel particularly in MSCA Civil Appeal No
5 of 1984 at pages 108 and 109. The
submission of Mr Osman is that these can not be admitted in evidence against
Moses Phekani. The argument is that
these are statements of a third party.
This a plausible argument.
However, it has some natural
flaw. The statements in the submissions
of counsel for Mr Moses Phekani were made after counsel laid a thorough foundation
in answer and question session. The
circumstance is clearly that the submission of counsel is made on behalf of
Moses Phekani based on answers/replies of the said Moses Phekani. I would have no justification to exclude
those submissions.
The submission of senior
counsel on judgment is that it should not be admitted. He stated that judgment
binds the parties to the suit and strangers cannot derive any benefit or assume
any obligation thereunder.
I agree with senior
counsel. However in the matter at hand there are two points worth noting.
Firstly the business style known as M.B. Phekani and Sons enjoined Moses
and Bishop and it cannot be accepted that Bishop was a third party. His name was enjoined in the
proceedings. Secondly, the issue of
enjoining these names and the judgment thereon was not obiter dictum. Therefore such judgment is admissible in
evidence and I so order.
It is the ruling of this
Court that the record of proceedings and judgments referred to should be admitted
in evidence in this matter and be marked as exhibits for the plaintiff
accordingly.
MADE IN CHAMBERS this 1st day of March
2000 at Blantyre.
CHIMASULA PHIRI
JUDGE