Bowler Beverage Company Ltd v Trade Kings (25 of 2010) [2010] MWSC 7 (30 June 2010)

JUDICIARY IN THE MALAWI SUPREME COURT OF APPEAL AT BLANTYRE MSCA CIVI APPEAL NO. 25 OF 2O1O (Being Commercial Case No. 20 of 2008) BETWEEN: BOWLER BEVERAGE CO. LTD PLAINTIFF -AND - TRADE KINGS LIMITED..... .... DEFENDANT CORAM: THE HONOURABLE JUSTICE E. B. TWEA, JA Gondwe, of Counsel for the Applicant Majamanda, of Counsel for the Respondent Balakasi - Official Interpreter RULING Twea. JA. This is an appiication by the respondent seeking ieave to amend notice to affirrn and vary the judgment of the court below, brought under Order III Rules 13(1) and 19 of the Supreme Court of Appeal Rules, hereinafter referred to as the Rules, Order III r. 13(1) of the Rules provides as follows: "13. -(1) It shall not be neoessary for the respondent to give notice of motion by way of cross -- appeal; but if a respondent intends upon the hearing of the appeai to contend that the decision of the Courl belou' should be varied, or that it should be affirmed on grounds other than those relied on bi'that court he shall within one month after service upon him of the notice of appeal cause written notice of such intention to be given to every party who may be affected by such contention, whether or not such party has filed an address of service. In such notice the respondent shall ciearly state to grounds on which he intends to rely and within the same period he shall file with the Registrar four copies of such notice of which one sharl be included in the tecord, and other three copies provided for the use of the members." The judgment in issue was delivered on 3'd April, 20a9. The notice in respect of varying the judgment was filed on 26'n Muy, 2009. No issue was taken on the date and in the course of hearing the application to amend, the appellant intimated that they do not object to the request for extension of times to regularize the deiay and also allow the respondent to file notice to affirm the judgment. Notably, the intended amended notices did not compiy with civil forms 6 and 7 of the Rules, the parties agreed however, that these be filed, in duly amended form, before the hearing. When the application to amend was called, the appellant indicated that it was their wish to have the case disposed of on merit than technicalities, However, they had objection to one part of the intended notice, being paragraph L2 of the same. This read as foiiows: "1.2 The plaintiff/appellant did not in the action in the Court below serve a reply to defence or defence to the counter claim and consequentiy there was no issue between the parlies regarding the propriety or effectiveness of the cancellation of the said trade mark be the Reeistrar of Trade Marks." The appellant contended that this matter was not before the Court below. It was not denied that they did not serve a reply to the defence or a defence to the counterclaim. It was contended however, that their course of action was influence by the ruling and directions of the judge when he dismissed their applications to strike out the defence. The judge said: "l therefore dismiss the plaintiff s application. I order that the defendant furnishes the plaintiff the particulars of the fraud to be relied upon within 7 days of this order, I further order that either parly fun-rishes the other any requested information in r,r'riting within 7 days of receipt of the request." The appellant argued that this determined what would be in issue at the trial, therefore, the respondent should not be allowed to rely on paragraph 1.2 above quoted as it would be raising issues not before the Court below. The respondent, however insisted that pleadings cannot be ignored and firrther, that they would not be bringing anything new by reiying on the same. It is not my duty to decide on the issues now. i only wish to re affirm that leave to amend notice of appeal or respondent' notice, should be considered together with Order 5911lI of Supreme Court Ruies. The rule clearil, stipulates that such leave would ordinarily be granted unless - (a) (b) (c) the amendment raises issues not open on the pleadings; the facts necessary to sustain the point of law concerned have not been established in the evidence; or the granting of leave to amend would give rise to significant preiudice to the other party. Taking into account the above, one notes that the discretion of the Court to grant leave to amend is generally unfettered: See Perrv V St Hellen's LandConstruction Co, Ltd (1939) 3 All E. R. 113. Having regard to the facts of this case, I do not think that the appellant can successfully bring this case within the above stated exceptions. I am further fortified in this because the judge in the court below in his judgment, at page 22, satd: "Having said this much. I now turn to the point that the plaintiffs marks were cancelied by the Registrar and the plaintiff \^/as comrnunicated of that fact by letter of I i "' November, 2004. The plaintiff has up to now not challenged this cancellation of the marks. it is trite lau'that a determination of a matter by whichever officer public or private including court judgments is valid unless reversed by a competent authority follou'ing any iaid down procedures in the relevant statute or other instrument." I would not wish to speculate, at this point in time, on the scope of this general statement of law by the court below. All I can say for now is that whether or not the specifics of the counterclaim can be supported and hou' far they can be so supported can only be determined at tlie hearing, in saying this, I bear in mind the general powers of this Court on appeal under Section 22 of the Supreme Court of Appeal Act, Order III r 26 of the Rules and Order 59 r 10 of Rules of Supreme Court, more particulariy, Order 59/10(6) which provides that: "(6) The powers of the Court of Appeal in respect of an appeal shall not be restricted by reason of any interlocutory order from which there was no appeal." I therefore dismiss the appellants objections. I accordingly grant leave to the respondent to amend their notices as prayed. with costs. Pronouncecl in Chamber.s this 27tn day of Jul\',2010 at Biantyre. E. B. Twea JUSTICE OF APPEAL JUDICIARY IN THE MALAWI SUPREME COURT OF APPEAL AT BLANTYRE MSCA CRIMINAL APPEAL NO. 6 OF 2OO7 (Being High Court Case No. 165 of 2003 sitting at Mulanje) BETWEEN: CHARLES KHOVIWA ... APPELLANT -and- THE REPUBLIC. ...... RESPONDENT BEFORE: HON. JUSTICE D. G. TAMBALA, SC, JA HON. JUSTICE A. K. C. NYIRENDA, SC,JA HON. JUSTICE E. M. SINGINI, SC, JA Mlenga & Chungu,Counsel for the Appellant Ms Kal,rrni & Nkosi, Counsel for the Respondent Mwale, Recording Officer Singano (Mrs), Senior Personal Secretary JUDGMENT TAMBALA, SC, JA On 16ti' September, 2003, the appellant was convicted of murder contrary to section 2O9 of the Penal Code, by the High Court sitting u'ith a jury at Mulanje. He was sentenced to suffer death. The appellant's case moved through the High Court System with commendable speed. The crime was committed on lst January, 2002. On 16th September, 2003 full trial commenced before the iate Chimasula. J: the trial was concluded on the same day, resulting in the conviction and sentence of the appellant. The trial court handied the case r.r'ith remarkable efficiency, But the appellant is dissatisfied with his conviction and sentence. He decided to brins this appeal. Fortunately for the prosecution, the crime was committed in ful1 view of eye witnesses who readily gave evidence, in the court below, on the side of the prosecution. The first u'itness, who gave evidence for the prosecution, was Aramson Muchiwa. He is an uncie of the appellant. He said that on 1st January, 2OO2, he found the deceased struggling with the daughter of Waheliwa over a chair, The deceased wanted to take away the chair claiming that it u'as brought there by his father. The witness got hold of the deceased and asked him to leave the place. The deceased refused to listen. He insisted that he uzanted to take away the chair. He assauited the witness. Then the appeliant and one Roid Peter came to the place and intervened. The5' beat up the deceased. The witness pleaded with them to stop assaulting the deceased, but they did not listen. The deceased began to run a\ /ay from the place. The appellant and Roid Peter pursued him, The witness tried to call them back, but he was unsuccessful. They continued with the chase. The second witness was Dalitso Walasi, His evidence was that on the material day he had gone to a grocery to bu1' soap and as he was walking back from the grocery he saw the appellant and Roid Peter chasing the deceased, He noticed that the deceased fe1l down after one of his pursuers had tripped him. Then he saw Roid Peter stabbing the deceased u'ith a knife. The appellant aiso stabbed the deceased with a knife. They both stabbed him in the chest. After stabbing the deceased the handle of the appellant's knife broke away leaving the blade embedded in the victim's body. The deceased managed to stand and run briefly before he coilapsed and fe11 down. He died later, on the same da5'. The appeilant's appeal is grounded on the partial defence of provocation. It was argued that this possible defence was not fully explained to the jury. It is true that the deceased assaulted Aramson Muchiwa who is an uncle of the appellant. But the deceased used bare hands during the assault. Besides, the person who was assaulted pleaded with the appellant and his colleague to stop assauiting the deceased. He aiso pleaded with them and requested them to call off the chase against the deceased, but the appellant and his accomplice refused to pay attention. Clearly the deceased had given up the fight and ran away to save himself from further trouble, but the appellant and hj.s colleague could not give him a chance to escape. They pursued him, caught up with him and stabbed him to death. We do not think that the evidence left sufficient space for grounding the defence of provocation. We have examined the learned judge's direction to the jury and we think that the iearned judge did not err in the manner in which he addressed the jury, considering the overwhelming evidence supporting murder _) which was adduced in the court below. We are not satisfied that there is any merit in the ground of appeal on lvhich the appellant relies. We must now consider the appeal against sentence. it is true that in the case of Twobog Jacob u, Republic M,S. C. A. Crimino'l Appeo.l No. 18 of 2006, this court accepted the High Court's decision that the mandatory imposition of the sentence of death in every conviction of murder, regardless of the presence of mitigating circumstances, is unconstitutional. We also agreed that the triai judge must at all times possess discretion in relation to the gravity of sentence which must be imposed, even in cases where the defendant is convicted of murder: see Constitutional Case AIo. 72 of 2OO7 Kafantageni and Another u. Attorneg General. In the present case however, we take the view that the appellant does not deserve the court's lenience. The appellant and a colleague assaulted and stabbed a defenceless person u'ho was fleeing the scene of a fight to save himself from troubie. The appellant and his accomplice did not u'ant to give the deceased a chance to 1ive. His conduct on the materiai day was inexcusable. He deserves the death sentence. The appellant's appeal is unsuccessful. It is dismissed. DELIVERED in Open Court this 1st day of July, 2010 at Blantyre. stgnea. SW.lr,.1l D. G. Tambala, SC, JA Sion -^b" A. K. E. M. Singini, SC, JA