Tiroyakgosi v Garmroudi (Civil Appeal No. 32 of 201) [2002] BWCA 27; [2002] 2 B.L.R. 89 (CA) (19 July 2002)

The appellant, who had been representing himself from the inception of these proceedings, is a builder. He took action against the respondent in the Magistrates Court to recover the sum of P4 834.10, being the balance

The trial of the matter commenced in earnest on 21 October 1998. The appellant gave evidence and closed his case. The defendant also gave evidence, but the matter was postponed to 28 October 1998, to afford the defendant an opportunity to call a witness. At the resumption of hearing of the matter at 8.45 a.m. on 28 October 1998, the appellant was not present in Court.

The Court Interpreter informed the magistrate that the appellant had been present earlier, but had disappeared. He had called the name of the appellant thrice outside without response. The Court Registry had informed him (the Interpreter) that the appellant had gone to the Labour Office. Upon hearing this, the Attorney for the Defendant said:

Whereupon the trial magistrate precipitously ruled that: "This matter is dismissed with costs for reason that plaintiff is absent without reason." The appellant returned to the courthouse shortly after his case had been dismissed.

I pause here to consider the merits of the behaviour of the defendant s attorney and the decision of the magistrate to grant the application for dismissal. It must be remembered that the appellant had closed his case and that the postponement of the case to the 28 October 1998 was occasioned by the absence of the respondent's witness. If, therefore, the appellant was absent, and neither the attorney for the respondent nor the court was prepared to grant him a little time to return, then there were two options open to the attorney for the defendant. He had either to put the defendant's witness in the box to testify on behalf of the defendant, or, close the defendant's case and allow the magistrate to give judgment on the evidence that had been placed before the Court.

Applying for a dismissal of the case on the ground of appellant's absence, when there was evidence before the Court upon which judgment could be pronounced, was not an option open to the defendant's attorney. It was remiss of the defendant's attorney to make such an application as it borders on dishonest conduct. On the part of the magistrate, it was unmitigated folly to grant the application for a dismissal when there was evidence before the Court upon which a judgment could be based. In the circumstances, the order of the magistrate dismissing the appellant's case with costs was one that the Court had no power to make at that stage of the case and was incompetent, null, void and of no effect.

The order of the magistrate was null, void and of no effect because, at the close of the case for the plaintiff, the defendant may apply for absolution from the instance, in which event the defendant or an attorney on his behalf may address the court, and the plaintiff or his attorney, if represented may reply. (See GASCOYNE v PAUL & HUNTER 1917 TPD 170; LYMINGTON ESTATE LTD v MURPHY 1949(1) S.A. 564(C)). Since the defendant's attorney did not apply for absolution, but led evidence from the defendant, the trial court could only conclude the case with a judgment based on the evidence adduced before it. It had no authority to dismiss the action for want of appearance of either of the parties.

Upon the cases of both parties being closed, the parties or their attorneys on their behalf address the court. It is a fundamental principle that every litigant should be given a fair opportunity of addressing the court, either himself or through his representative. The judgment of the Court concludes the trial, and not a dismissal for being "absent without reason."

"If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void

without more ado, though it is sometimes convenient to have the court declare it so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse."

The unrepresented appellant did not accept the order of the magistrate dismissing his case on account of his absence from court. He wrote to the Clerk of the Court on numerous occasions asking for the case to be or reinstated. There is nothing on record to show that the Court responded to any of his letters.

"The apparent remissness on the part of the Court officials is regrettable. One would have thought that the appellant would have been advised at that stage that the correct course to adopt was to apply for the rescission of the judgment."

On 17 August 2000 the appellant wrote to the Clerk of Court requesting that his matter be referred to the High Court. The Registrar of the Court thought the letter was a Notice of Appeal and placed it before a Judge of the High Court as such.

It must be remarked at this stage, that the unrepresented appellant did not, after the incompetent order of the magistrate, just sit and allow the grass to grow under his feet, he strove at all times to have the case concluded at all costs without success. One cannot, therefore, impute solely to him the long delay which ensued before the matter came on appeal to the High Court.

The Judge who entertained the appeal in the High Court said that, had the appellant's failure to file a proper notice of appeal been the only problem, he would have readily condoned the non-compliance with the Rules of Court in terms of Order 5 of the High Court Rules. However, he found that there was no explanation for the inordinate delay between the making of the incompetent order and the lodging of the appeal in the High Court in terms of Order 59 rule 1, which requires an appeal from the Magistrate's Court to be prosecuted within six weeks of noting an appeal.

In my opinion, the learned Judge should have given greater consideration to the fact that the appellant was at all times unrepresented. The learned Judge himself concluded that it is undesirable for Counsel to snatch at a judgment and judicial officers should be slow to punish litigants, especially those who, due to

It was apparent from the record that the appellant had not been indolent after the incompetent order was pronounced. He was assertory of his legal right to have the matter reinstated, but was thwarted by the deafening silence of the magistrate court officials, until he applied to the High Court for redress.

The order complained of was incompetent, null, void and of no effect. It was not going to be validated by the passage of time, no matter how long. Officials of the Magistrate's Court, by not responding to letters addressed to that court, on this issue, were largely to blame for what the learned Judge considered to be an inordinate delay. The remissness of the Magistrate's Court officials should not be visited on the hapless unrepresented appellant. There was thus some reasonable explanation for the delay - GENERAL ACCIDENT INSURANCE CO. S.A LTD v ZAMPELI 1988(4) S.A. 407 at 410 I-J.

"7. For all purposes of and incidental to the hearing and determination of any appeal, the Court of Appeal shall have, in addition to any other power, authority and

By Order 5 of the Rules of the High Court, non-compliance with any of the Rules, or with any rule of practice for the time being in force, shall not render any proceeding void unless the court so directs. In my judgment, for the reasons above given, the learned Judge fell into error in directing that non-compliance with Order 59 rules 1 and 2 rendered the appeal void.

By Rule 8(1) of the Court of Appeal Rules: "The Court may extend the time prescribed for the doing of anything to which these Rules apply, or may direct a departure from these Rules in any other way in the interest of justice." I am unable to imagine a cause more deserving of the application of this Rule. Accordingly, the appeal is allowed.

I now come to the question of costs. The incompetent order by the magistrate was prompted by an application from the respondent's attorney. The costs resulting therefrom were partly occasioned by that ill-founded application and partly by the remissness of court officials. It would clearly be unfair to expect the appellant to bear any part of them. On the other hand, while it is true that the appellant was unrepresented, one cannot usually profit by one's ignorance of court procedures.

the order of the Magistrate's Court dismissing the plaintiffs case because he was "absent without reason" and awarding costs against the plaintiff, is hereby rescinded.

the matter is remitted to the Magistrate's Court to be prosecuted to its conclusion, or, if for any reason the matter cannot be continued, then the matter may be heard de novo before another magistrate.

Botswana: Court of Appeal

Tiroyakgosi v Garmroudi (Civil Appeal No. 32 of 201) [2002] BWCA 27; [2002] 2 B.L.R. 89 (CA) (19 July 2002)