CORAM: HON. JUSTICE A.C. KAPANDA
Makuta, of Counsel for the Plaintiff
Naphambo, of Counsel for the Defendant
Selemani, Official Interpreter/Recording Officer

______________________________________________________________

Kapanda, J.

 RULING

Introduction

In the Originating Summons before this court, issued on 25th September 2000, the Plaintiff is seeking an order from this court for the removal of a caution registered by the Defendant on Title Number 55 in the City of Blantyre.  There is attached to the originating summons an affidavit in support of the Plaintiff’s application.  It is sworn by the Plaintiff.

 
There is a notice of intention to contest these proceedings filed by the Defendant on the 3rd day of October 2000.  The Defendant is opposing the Plaintiff’s application and to that end there is an affidavit in opposition been sworn and filed by a Mr McDonald Chokani on 21st March 2001.

Evidence

As noted above the evidence in these proceedings is by way of affidavits.  The deponents were not cross examined on the contents of their affidavits.

 
The Plaintiff’s affidavit has the affidavits of the vendors of the land, the subject matter of these proceedings, attached to it.  It is observed, though, that the estate agent who dealt with both the Plaintiff and the Defendant in connection with the land herein has neither sworn an affidavit or given viva voce evidence but yet what the Plaintiff and the Defendant are saying regarding the separate transactions they entered into with the estate agent are different.  In particular there are two opposing arguments that have been advanced with regard to the type of authority that the estate agent had viz whether or not he had authority to make a binding contract on behalf of the vendors.  It is rather unfortunate that there is no evidence on record showing the terms of the agency agreement between the vendors and the estate agent.  Evidence from the estate would have gone a long way in assisting the court coming to a proper conclusion in this regard.  Since there was no cross examination of the deponents, and that the contents of these affidavit should be accepted as correct, it therefore follows that there are disputes concerning the facts of this case.

Further, it is observed that there are other matters deponed by the Plaintiff in her affidavit which, in my view, are inadmissible on the ground that some are infringing the rule against hearsay evidence.  In particular paragraphs 6, 7, 9, 12, 22, 26 and 30 of the Plaintiff’s affidavit contain hearsay evidence.  By reason of the fact that this matter before this court is a free standing lis such evidence is unacceptable in terms of Order 41 rule 5 of the Rules of the Supreme Court - Exparte Dazir Omar t/a Spider Corporation MISC. Civil Cause No. 3 of 2001 (unreported).

Law and Findings

 
In as much as the originating summons appears to be raising the issue of whether or not the caution should be removed on the ground that it is court’s finding, when one considers the affidavit evidence and the arguments of both parties, that the following questions have arisen and require determination:

(a) whether or not the estate agent had authority to make a binding contract on behalf of the vendors.

(b) whether or not title had passed to the Plaintiff at the time the property was also offered to the Defendant.

(c) whether or not the vendors are liable to make good the deposit paid by the Defendant to the estate agent before they can be allowed to transfer title, in the land, to the Plaintiff.

(d) whether or not the money paid by the Defendant, to the estate agent, should be returned by the vendors to the Defendant.

(e) who has a better claim to title in the land the subject matter of these proceedings.

(f) whether or not all the relevant parties to this matter are before this court.   

 
The above are just some of the issues that could require a decision of the court if the dispute between the Plaintiff and the Defendant is to be resolved.  Moreover, the issues enumerated above, in my view, show that this matter is a contentious one and that there are substantial disputes of facts between the parties herein which, as already noted above, would require determination by a court of law.

It is trite law, and I need not cite an authority for it, that an originating summons is appropriate for commencing proceedings in which the sole principal question at issue is, or is likely to be, one of construction or some question of law and/or proceedings in which there is unlikely to be any substantial dispute of fact.

 
The question that may be paused here is whether or not this matter is a proper one that may be dealt with in an originating summons.  As already remarked above, and I repeat, it is evident from the arguments of Counsel, and from the affidavits filed herein that the question of whether or not the caution is unnecessary and therefore should be removed will not settle the dispute between the parties for there are yet other questions to be decided.  I am of the view that these proceedings might have been commenced by originating summons because of the fact that at the time the originating summons was issued the matter in issue was only in respect of the caution.  But as matters have turned out, at the hearing of this originating summons, there are other issues that must be resolved as well.  For this reason, it is my finding that the mode of commencement of these proceedings is in appropriate.  It is only proper, therefore, that I should refuse to make the order prayed but in its place I will order, pursuant to Order 29/8 of the Rules of the Supreme Court, that this matter should be proceeded with as if same was commenced by a writ of summons.  It is so ordered that this shall be recommenced by way of writ of summons the order sought by the Plaintiff is premised upon the fact that there are, as already found above, contentious issues in this matter which can only be dealt with in an action commenced by a writ of summons in which the issues between the parties will clearly be in the pleadings under which the parties can, if they wish, sick further and better particulars of the matters alleged by their opponents, and in which there will be full discovery.

 
 
Indeed, it is my view that not all the relevant parties are before this court considering that the vendors are not parties to these proceedings thus it will be difficult for the court to decide on these other issues that have arisen in this matter.  It is a settled principle of law that proper parties necessary for determining the question arising in a case must be before the court to enable it settle the said questions - Carr -vs- Stuart [1923-60]ALR. Mal. 17; Nakanga -vs- Automotive Products Ltd, Pillane and Notcut (Overseas) Ltd 10 MLR 81.  In my considered judgment the application can be meaningfully disposed of, and all the questions answered, it the vendors are made parties to these proceedings.  They can be made parties either as Plaintiffs or Defendants pursuant to Order 15 of the Rules of the Supreme Court this court is given very wide discretion, in a case where there is a misjoinder and/or non-joinder of a party, to order the substitution or addition of a competent party whom it may be necessary to be added or substituted his order to enable the court to effectually and competently adjudicate upon and determine all the questions that have arised in a matter.  The court can exercise this discretion without an application without an application by either of the parties to add and/or substitute a party - Apex Car Sales Ltd -vs- The Anticorruption Bureau Civil Cause No. 3479 of 2000 (unreported); Nyasaland Tus -vs- Nkolokosa [1961-63]ALR Mal 367.  I have found that this application can be meaningfully disposed of, because of the other issues involved, if the vendors are made parties.  I will therefore exercise the discretion, conferred on me by the provisions of Order 15 of the Rules of the Supreme Court, and order that the vendors and/or the estate agent be added as parties to the proceedings that will be proceeded with by the Plaintiff as ordered above.  The Plaintiff shall be at liberty to either add the said vendors and/or the estate agent as Plaintiffs or Defendants.

Costs

The proceedings are still continuing notwithstanding the fact that they were a free standing lis and that the court has refused to make the order sought by the Plaintiff.  In the premises the costs of, and occasioned by, this application shall be costs in the cause.

Pronounced in Chambers this 14th day of May 2001 at Principal Registry, Blantyre.
 
 
 

 F.E. Kapanda
 JUDGE