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Kgosiemang v The Attorney General (Civil Appeal No. 50 of 1996) [1997] BWCA 22; [1997] B.L.R. 156 (CA) (28 January 1997)

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IN THE COURT OF APPEAL OF BOTSWANA HELP AT LOBATSE
CIVIL APPLICATION NO. 50/96 HIGH COURT CIVIL TRIAL NO. 594/94
In the matter between:
ONALENNA KGOSIEMANG      Applicant
and
ATTORNEY GENERAL         Respondent
Mr. Attorney T. Joina for the Applicant
JUDGMENT
CORAM: W.H.R. SCHREENER JA. SCHREINER J.A
This matter concerns proceedings by the Applicant for certain
v.'t/-J,
relief arising from the dismissal from her service e># the
Department of Local Government as a Principal Midwife. Her services terminated on the 20th August 1992. The claim was for payment of damages in the sum of P13 7 022 with interest and costs or, alternatively, an Order directing reinstatement, payment of all arrears of salary with interest at the rate of 12% a tempore morae and costs. The merits of the Applicant's claim are not in issue in the present proceedings. It appears to be an

2
application for leave to appeal against the decision of the trial
court ordering a postponement of the part-heard trial rather than giving the Applicant the right to prove his case in terms of Order 45(1) of the High Court Rules and to seek judgment in the absence of the defendant.
The case commenced on the 29th August 1995 and two witnesses Dr. Waibale Muganga and the Applicant were called. When the Applicant had given evidence in chief and was under cross-examination by Counsel for the defendant the matter had to be postponed and the Court made an order that "the case should be postponed to dates to be fixed by the Registrar and Master on consultation by the Attorneys for October." The matter was not resumed until the 22nd August 1996. No member of the Attorney General's staff was present on that date and Mr. Joina asked the Court to adhere strictly to the provisions of Order 4 5 Rule 1 of the High Court Rules and permit him to lead evidence of damages and to seek an Order on the evidence either for damages or for reinstatement as claimed in the summons. It was contended that in terms of Rule 1 of Order 45 the High Court had no discretion to refuse to make an Order in regard to his claim the burden of proving of which had been discharged by him.

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The Applicant's case depends upon a particular interpretation of
Order 45 Rule 1 which, so it is contended, places a restriction upon the power of the Court where a party or his representation is not present "when a trial is called." This, it is argued, gives to the party who is present or his representation the right to "prove his claim" and enjoy the right, on so doing, of obtaining judgment on his claim to the extent of such proof. Nganunu J in a short judgment adopted a different approach, deciding, in effect, that notwithstanding that the rule provides that in the absence of a defendant on proof of the claim (or, by implication, a part of it) the court may issue such a judgment or postpone or adjourn the matter in order to enable the absent party to appear and,after due apology and explanation, to proceed with the defence.
The view of Nganunu J. in' consistent with the proper approach to the powers of a judicial officer in the conduct of a trial. Generally he has the power to regulate the proceedings in any matter which has been placed in his hands by the law of procedure appropriate to his court. It has often been pointed out that the difficulties of conducting a trial where circumstances vary from time to time and the best way to achieve the purpose of attaining justice in as expeditious and equitable manner as possible must

4
be to leave the conduct of the hearing as far as possible in the
hands of the presiding judicial officer. The written rules should be followed unless to do so would be promote injustice or delay or any other undesirable result and there is a way to avoid it. Where the object of a rule can be achieved by applying a construction which would be consistent with the purposes of procedural rules in trial actions then there is no need to distort the meaning of that phrase so as merely to introduce more rigidity into a system of rules which is sometimes already too rigid. It was emphasised on behalf of the Applicant that Order 45(1) uses the word "shall" when defining the duty of the court to give judgment in favour of a Plaintiff who is present against a defendant who is not. The Interpretation Act Cap 1:04 states that this word "shall" is to be construed as imperative and "may" as permissive and empowering. The section does not permit of different interpretation if the context otherwise requires i.e. it is not merely a direction to adopt a particular meaning consistent with the context; the context must, if necessary, be adapted to the imperative requirement of the Interpretation Act.
There remains the question of the meaning of the phrase "when a trial is called" in Rule 1 of Order 45. It is not a phrase which has any technical meaning and is capable of referring only to the

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point at which a trial is called for hearing in Court for the
first time by the Registrar or other competent official. At this stage the non-appearance of a defendant assumes considerable importance because it is the stage at which, in the High Court, the Judge takes over the control and direction of the trial by the resolution of the dispute between the parties. It is a commencement of proceedings very different from the occasions when the court merely re-assembles after the hearing has started but has stopped because of the occurence of one of the many events which makes it necessary to postpone or adjourn the hearing from time to time. It is true that it is customary to announce at the resumption of any hearing the name of the case after an adjournment or a postponement but this cannot be equated to the calling of the case when it is first commenced in Court. Order 45(1) has no application when, as happened in the present case, a part-heard trial is re-commenced after an interruption due to one of the situations which arise during the course of a trial.
It follows that the application for judgment by the Applicant's legal representatives in terms of Rule 45(1) was inappropriate and ineffective. The Learned Judge had the power to postpone the trial. The notice of appeal in this matter is effectively an

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application for leave to appeal against the decision of Nganunu
J. to postpone the hearing of the case rather than to give him the right to prove his case for damages and other relief. This was an interlocutory decision on the part of the Learned Judge for which leave to appeal was necessary.
In the view I take of the matter there is no prospect of success and leave to appeal is refused.
DELIVERED IN OPEN COURT THIS 28th DAY OF JANUARY, 1997.

W. H. R. SCHREINER JUDGE OF COURT OF APPEAL

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