Banda v Blantyre Baptist Holdings Limited (Land Cause 121 of 2016) [2024] MWHCCiv 7 (19 September 2024)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI SITTING AT BLANTYRE PRINCIPAL REGISTRY CIVIL DIVISION LAND CAUSE NO. 121 OF 2016 (Before Honourable Justice Mambulasa) BETWEEN JOHN SUZI-BANDA...............cccccccccccccccccceccecceseccescececsecsecsesseeessesseeees CLAIMANT -AND- BLANTYRE BAPTIST HOLDINGS LIMITED.....................ce0sseee cesses soe DDEFENDANT CORAM: HH ELIJAH BLACKBOARD DAZILIKWIZA PACHALO DANIELS Mr. J. S Banda, Counsel for the Claimant, Mr. Mauya Msuku, Counsel for the Defendant, Mr. F. Mathanda, Court Official, RULING DANIELS AR. “Where a hopeless case 1s brought with the assistance of the advocate, the advocate must either be bringing it in the knowledge that it is hopeless (and therefore assisting in an abuse), or believing that it is not hopeless (and therefore incompetent), or not caring whether it is hopeless (and therefore guilty of recklessness or gross negligence), in any of these cases the conduct of the advocate warrants action being taken by the court.”! (Ephansis Added) 1. We would be guilty of intellectual dishonesty if we would be here to insinuate any competence issues against the learned Counsel for the defendant. We refuse to so impute. This we say because, about 10 years ago, we were under the competent tutorage of the learned Counsel for the defendant. This was during the time we first answered the call of studying the law. We are indebted to his ingenuity and industry which intellectually redeemed our then unlearned mind from the ravages of ignorance. But today, he is coming seeking our hand to suspend the execution of an order of damages and also an application to rehear the assessment of damages. All these applications are coming through Order 2 Rule 3(f) as read together with Order 10 Rule 1 of the Courts (High Court)(Civil Procedure) Rules, 2017. We are unable to sustain his arguments in both applications. We are impotent to see how the law cited, enables us to grant Counsel’s prayer. Our dismay will soon be apparent. 2. Be that as it may, we think the learned Counsel perhaps just had a slip of the mind on what should have been done in this case. That happens to all. Owing to that our premise as regards him bringing these applications, our view is that, Counsel has brought before us hopeless and ill-conceived prayers. We decline to grant his prayers. That is the action that this Court has taken against these two desperate applications. 3. We would not be here to dismiss these applications if we were not anointed by the authority of the Honourable Judge under Order 25 Rule 1 of the Courts (High Court) (Civil Procedure) Rules, 2017 to entertain the applications which have suffered a sudden death for want of merit. The reason we think the applications before us are hopeless, is because ' Webb D. Hopeless Cases: In Defence of Compensating Litigants at the Advocate’s Expense. (1999) 30 (1) Victoria University of Wellington Law Review 295. Par 299 the hidden assumption of the first application to suspend the execution of an assessment order, is that, this Court can then reassess the damages. Our mind still is in shock. We are wondering and are asking ourselves that, is it not the law that a judgement on liability is an order so premature and inchoate that until an assessment of damages is handed down, an appeal to the Supreme Court of Appeal for Malawi may not lie successfully? Our understanding has been that, an assessment of damages order is in essence the judgement of the High Court and it completes the judgement on liability.” 4. Perhaps we missed it? Does it not follow that where one is not happy with an assessment of damages order for whatever reasons, the remedy has to lie in an appeal? We think that is the correct position. We will soon invite the reasoning of Katsala JA (As he then was), when the time is ripe. Now is not the time. Still on the nature of Counsel’s applications, it is clear that he raises legitimate issues but, is this what Counsel should be doing? We do not know. We wish we did. Perhaps we do. That is why we think he ought not to have proceeded this way. Unfortunately he did. We worry. Nonetheless, what we know is that an order on assessment of damages is the decision of the Judge and it cannot be reheard before the same Court where like in this case Counsel is aggrieved by it. The argument about this Court’s discretion masquerading as the basis for us to grant a reassessment prayer is hopeless and we cannot sustain it. We submit that we cannot do that in law, where like in this case there is a clear path that Counsel should have taken. Thus, the applications before us are ill-conceived both in reason and at law. Their fate is obvious. They must collapse. Indeed, what we are communicating 1s that, they have hopelessly collapsed. We mean the applications herein. 5. Perhaps, we will try not to repeat ourselves but, we must clearly reannounce our reasons as to why we have concluded as above. We know that the applications before us, are against the order on assessment of damages which was entered by the current Honourable Registrar on 28 June, 2024. The damages were assessed at MK36, 879,079.6 as damages for loss of ? See the opinion of Katsala JA (As he then was) in Elida Liphava v Prime Insurance and Another Civil Appeal No. of 2019 (Unreported) use of land, diminution and aggravated damages. It is pursuant to that order that, the claimant filed a Third Party Debt Order, which was coming on 17 September, 2024 for a Final Third Party Debt Order. We did not proceed to hear the Final Third Party Debt Order proceedings. We were invited to decide on interim issues as we are now doing. That aside, what we have is a question, can we suspend the order with the intent of doing reassessment of damages? Our response has been clear from the onset, we cannot. We will not. Having read the documentation before us, what in essence the defendant is inviting us to do, is alien to our faculties. We think Counsel should have prayed for a stay with the aim of appealing the decision on damages if he was so aggrieved. This is not what he is doing in fact. That is exactly why we think his applications are ill-conceived. Be that as it is, and for the avoidance of doubt, we must cement our position herein by honouring our earlier promise, that it would be us mocking the law if we on this point, were not to revere and invite the reasoning of Katsala JA (As he then was) in_Elida Liphava v Prime Insurance and Another Civil Appeal No. of 2019 (Unreported) where he had the following to say: “the Registrar determines the figures which are necessary in order to make the judgment delivered by the judge complete. Thus, the assessment is part and parcel of the judgment of the court (as made by the judge). Consequently, an appeal against the order of assessment cannot lie to the judge or another judge of the High Court. If it were to so lie, it would in effect mean that the judge is sitting on an appeal against his own judgment or to put it differently, the High Court is sitting on an appeal against its own decision. This, as we all know, is untenable.” (Emphasis Added) Clearly, the import from above excerpt is that, it exposes that the premise on which the suspension application is made, is fundamentally wanting as a matter of both logic and law. Needless to say, if we were to be fair, we would say that, the only review known to our aptitude is one under Order 31 Rule 17 of the Courts (High Court)(Civil Procedure) Rules, 2017. That is a review on assessment of costs. The law permits that. But, that is not what Counsel seeks to achieve should we grant him the suspension. Of course, we have refused to grant it. Regrettably, we echo that refusal with the force it commands because we think these applications were desperate. In fact, they were an abuse of the processes of the Court, because the learned Counsel ought to have examined the premise of his applications. He respectfully did not. Or perhaps we do not see that he did. If he correctly applied his mind, he would have received a revelation that, the proper way of proceeding was to seek a stay and an appeal against the decision on assessment of damages which he seriously alleges that, it was done without them being heard on the premise that, they were denied an adjournment. Either way, we refuse to grant him his requests for they lack thought. 8. Accordingly, the application to have the enforcement of the assessment of damages stayed with the intendment of us doing a reassessment of damages be and 1s hereby dismissed for want of merit. If the stay, was for the purposes of a pending appeal, we would be inclined to hold otherwise. But, what we have, is not what we wish it was. Again, we dismiss the application for reassessment of damages. It is without merit and unattainable. 9. Unless otherwise confined, we direct that within 14 days from the date hereof, we shall proceed to hear the Final Third Party Debt Order proceedings which proceedings were scheduled on the date the present unmerited applications were brought to our attention for our remarks. 10. We will not make any order on costs. In the circumstances, we think we do not have to. 11. We have decided as above ordered. PRONOUNCED in chambers this 19" September, 2024 at the High Court of Malawi, sitting at Blantyre, Principal Registry, Civil Division. ASSISTANT REGISTRAR