Banja La Mtsogolo Limited v Chiphwanya & Anor. (Misc. Civil Appeal 14 of 2017) [2017] MWHC 95 (9 May 2017)

IN THE HIGH COURT OF MALA WI PRINCIPAL REGISTRY MISCELLANEOUS CIVIL APPEAL NO. 14 OF 2017 BETWEEN BANJA LA MTSOGOLO LIMITED ................................. APPELLANT AND DA VIE CHIPHWANYA ...................... NATIONAL BANK OF MALA WI .............................. RESPONDENT 2ND GARNISHEE .......................... CORAM: HON. JUSTICE R. MBVUNDULA Sauti-Phiri, Counsel Counsel, Mickeas, Coµnsel for the 2nd Garnishee Dziwani, Interpreter Mpasu, Official for the Plaintiff for the Respondent RULING Factual backgrounds by the Industrial Relations the sum ofK32 251 064.84 applied on 3th February was awarded The respondent Court (IRC) after which the respondent due for confirmation stay of execution February before the Registrar February thereafter was postponed of the IRC at the request for a garnishee 2017. On its part the appellant for a of 7th The application order nisi which was applied 2017. The hearing for stay came up was delivered for 7th February of the court. on 3th February and his ruling at 2pm (having been earlier the Registrar for 8.30 am the same day). Soon for the garnishee the application proceeded scheduled to consider which was scheduled order on 9th nisi. The Registrar garnishee could not have competently prior disposal order nisi without of the application for a stay. dealt with the application for a The appellant th the same and for an ord en applied for a r er that the money be paid into court. eview of the Registrar's de cision and for a s tay of Meanwhile practitioners, the 2nct garnishee had paid the money awarded to the respondent's who informed the court that they had in tum paid the respondent. After the hearing court pending the outcome of this application of this application . this court ordered the money to be paid into Summary of arguments For the appellant case 1s that the Registrar over the application having proceeded for a stay contrar without Court (Procedure) y to the Rules, which fact the (at page 6 of his ruling), the entire when he presided of the Industrial in fact expressly In main the appellant's jurisdiction provisions Registrar proceedings Beverages Moloko Phiri v Catherine Chidzombwe Relations acknowledged are null and void ab initio. In this regard counsel cited Krazy Kool Limited v NBS Bank Limited Civil Cause No. 111 of 2008 and Mofolo Civil Cause No. 65 of 2013. For the respondent submitted had been brought application herein submitted that the that the principles regarding whether or not to grant an Counsel for the respondent too late as the execution against which it is made had already been completed. Counsel application completed. challenge presiding dispute submitted the jurisdiction over the application such as the present depend on whether Counsel Counsel for a stay for want of jurisdiction. proceeded without jurisdiction. further that the appellant to the Registrar does not when they did not object could not now be heard to or not execution that the Registrar of the Registrar has been The law The following statement o another v R Colonel Njoloma and eme Cour w by the Supr epublic of Malawi [1998] t of Appe f the la al in Lieutenant MLR 162 explains the legal position on want of jurisdiction: He should "Lieutenant Colonel well above the rank of captain. The Court Marshall that the Court Marshall Marshall trial in the Court Marshall was no trial. since the court had no jurisdiction in Salima was without purported to try him." Njoloma, as his rank shows, was a very senior officer, have been tried by the High Court. had no jurisdiction to try him. The position, therefore, is to try him, while in actual fact the Court jurisdiction. was null and void ab initio In other words, the purported and, therefore, there The finding of guilty and entering of convictions were invalid, The Supreme upon the appellants. Court proceeded to quash the convictions and the sentences imposed The High Court in the two cases cited by counsel pronouncements, proceedings are n to wi� that where a court proceeds ull and void ab ini tio. for the appellant made similar without jurisdiction, the point that needs to be addressed did not challenge the Registrar's Matters A further appellant irrelevant. followed it is no excuse that the same was a result of oversight, consent ab initio. that the That is are matters of law, and where the same is not contention jurisdiction at the hearing. is the respondent's or some such excuse. The proceedings are a nullity of jurisdiction or ignorance, or Court's decision proceeding The Registrar's therefrom a nullity, and this extends to the purported order, including without jurisdiction . completion its purported rendered all processes ensuing execution of the garnishee Order The execution award in question the appe is hereby set aside and it is ordered that the money constituting the shall remain in the custody of the court until the determination of al or an order to the contrary. Made in chambers at Blantyre this 9 th day of May 2017. R. JUDGE 4