Moto v Sabadia (MSCA Civil Appeal 2 of 2014) [2017] MWSC 22 (20 June 2017)

10 15 20 25 30 40 45 7 Moto v Sabadia * (2014) Civil Appeal No 2 (MSCA) (unreported) JAA BETWEEN ELIZABETH MOTO AND ISHMAIL SABADIA Supreme Court of Appeal — Appeals to the Supreme Court — jurisdiction — governed by t Act — not the Courts Act Supreme Court of Appeal — Appeals to the Supreme Court — jurisdiction — permission — g CHIKOPA, MWAUNGULU, KAMANGA, APPELLANT RESPONDENT be Supreme Court of Appeal oes to jurisdiction — Supreme Court of Appeal has no jurisdiction where permission not obtained from it or the High Court Supreme Court of Appeal — appeal against judgment on assessment of damages by regisf court with leave of the registrar Assessment of damages by registrar — appeal from assessment of damages by the registré judge in chambers or open court Appeal against a registrar's assessment of damages — appeal to a judge in chambers — pI Supreme Court of Appeal — assessment of damages — appeal from a judgment of the High of damages by the Registrar — Supreme Court cannot hear appeal based on null decision Supreme Court of Appeal — Rules of the Supreme Court of Appeal — repealed by the Civil Rules of the Supreme Court, 19 65 — not rules of court of the Supreme Court of Appeal Supreme Court of Appeal — Practice and Procedure — Civil Procedure Rules, 1998 — are section 8 (b) of the Supreme Court of Appeal Act rar — appeal lies to this r — appeal does not lie to a oceedings a nullity court from an assessment Procedure Rules, 1998 — ules of this court under Statutes — interpretation — ordinary words — interpreted as common words and circumstances Statutes — interpretation — words excluded from a list were meant to be excluded Legislation considered Civil Procedure Rules 1998: Parts 12.7; 52.1; 52.2; 52.3 Courts Act: Sections 2; 8 (1); 29 General Interpretation Act: Section 2 High Court (Exercise of Jurisdiction by the Registrar) Rules: Rule 3 Rules of the Supreme Court, 1965: Order 58, rule 1A (3); Order 58, rule 1A (4); Order sd rule 2 (1) (a); Order 58 rule 2 (1) (b) Supreme Court of Appeal Act: Section 2; 8 (b) 21, 27 Supreme Court of Appeal Rules: Order 1, rule 4; ;Order 1, rule 13; Order 3, rule 34; Ordef 5, rule 1 Cases Attorney General v Sunrise Pharmaceutical Ltd (2013) Civil Appeal Case No 13 (MSCA Banda and another v Chunga [1990] 13 MLR 53 Chakwantha v Prime Insurance (2010) Civil Cause No 2195 (HC) (PR) (unreported) Gani v Chande (2003) Civil Cause No 6 (unreported) Hesz v Sotheby [1960] 1 WLR 285 Lewin v The Queen, 2011 DTC 1354 Malichi v Prime Insurance Company Limited (2009) Civil Cause No 2613 (unreported) Mpinganjira v Attorney General [1990] MLR 11 Nasiyaya v Attorney General (2012) Civil Case No 7 (MSCA) (unreported) (unreported) Page 1 Moto v Sabadia (2014) Civil Appeal No 2 (MSCA) (unreported) CHIKOPA, MIWAUNGULU, KAMANGA, JAA 10 15 20 25 30 40 45 ' Moto v Sabadia (2014) Civil Appeal No 2 (MSCA) (unreported) JAA The law, as [ understand it, is that judgments, including judgments on assessment to the Supreme Court of Appeal, not to the High Court or a judge of the High Court en word judgment, in this statement, is used advisably. It seems, at least to me, that con understanding that awards on assessment of damages are, stricti sensu, judgments decisions, decrees, determinations, directions or rulings. Moreover, except for a lower co v Prime Insurance, this Court and the Court below approach the issue based from the c CHIKOPA, wiWAu NGULU, KAMANGA, lof damages, are appealable bane or in chambers. The sion would be avoided by d not necessarily orders, rt decision of Chakwantha urt below. There would be little, if any, confusion if Order 58, rule 2 (1) (a) and (b) of the Rules of the Supreme Coprt, now Practice Direction 52PD - Appeals of the Civil Procedure Rules 1998, was understood from the Supreme C urt. From this perspective, it would be Section 8 (b) of the Supreme Court of Appeal Act that applies and not sectign 29 of the Courts Act and the High Court (Exercise of Jurisdiction by the Registrar) Rules. Additionally, Gani v Chande and Nasiyaya v Attorney General (2012) Civil Case No 7 (MSCA) (unreported), except for Chakwantha v Prime Insurance, decisions made after the Civil Procedure Rules 1998, are insensitive to the change in the rules of court for this Court and the court below. This Court decided Banda and another v Chunga and Mpinganjira v Attorney General before the Civil Procedure Rules 1998. The appeal before this court covers many grounds on the merits, including primordial and, therefore, should be raised, even swo motu, at any stage. This Court decid jurisdiction question hoping that, with it solved, the court may or may not consider the app¢ hear the appeal on the merits. If the appeal should not have been to a judge in chambers, nullity. Background The facts on which the lower court wanted jurisdiction are not complex and, in s the jurisdiction issue, here is their summary. The appellant and respondent were in the ca jurisdiction. Jurisdiction is ed, therefore, to resolve the al on the merits. We cannot the proceedings would be a b far as they help to resolve lurt below, respectively, the claimant and the defendant. The appellant on 12 July 2012 obtained a default judgment ih a claim of 4" April 2012. The judgment was for liquidated damages and interlocutory on other damages. The December 2012 assessed damages. The respondent successfully appealed to the juds assessment. Neither considered the court’s jurisdiction. The judge never, he should have Jurisdiction. The judge, probably and probably correctly, regarded this court’s decisi appellant, therefore, appeals to this court inter alia because the judge, sitting in chambers, | from the Assistant Registrar’s judgment on assessment of damages. The appellant relies on Banda & another v Chunga, Mpinganjira v Attorney Gend Assistant Registrar on 14" e in chambers against the had, considered the court’s Dn in Gani v Chande. The Acked jurisdiction on appeal al and Nasiyaya v Attorney General and never refers to Gani v Chande. Presumably, therefore, the appellant does not thise Gani v Chande because Nasiyaya v Attorney General effectively overruled it. The respondent, without referrin that the judge in chambers has jurisdiction to hear the appeal from the Assistant Registr} b to Gani v Chande, argues Ar’s assessment of damages because of Rule 3 of the High Court (Exercise of Jurisdiction of the Registrar) Rules. He never, therefore, in the same vent, refers to contrary views in Mpinganjira v Attorney General, Banda & Another v Chu General. Reasoning Appeals to this Court base on the Supreme Court of Appeal Act, not the Courts Act. The starting point is section 21, the jurisdiction provision, of the Supreme Cour matters that a citizen can appeal to this court: bea and Nasiyaya v Attorney of Appeal Act, prescribing Moto v Sabadia (2014) Civil Appeal No 2 (MSCA) (unreported) CHIKOPA, MWAUNGULU, KAMANGA, JAA Page 3 10 15 ©, 25 30 35 40 45 50 ' Moto vSabadia (2014) Civil Appeal No 2 (MSCA) (unreported) CHIKOPA, MWAUNGULU, KAMANGA, JAA The Rules of the Supreme Court, 1965, ceased, because of section 8 (b) of the Suprgme Court of Appeal Act and Order 3, rule 34 of the Supreme Court of Appeal Rules, to be the rules of court of the Supreme Court of Appeal because they ceased to be the rules of court of the Court of Appeal in England in 1999. It ig Order 58, rule 2 (1) (a) and (b) of the Rules of the Supreme Court, 1965, that this Court, and, in recent cases, obliyious to the repeal of the Rules of the Supreme Court, 1965, dominantly uses. The Rules of the Supreme Court, 1966, distinguished between matters against which appeals lay to a judge in chambers and the court of appeal. Order 58, fule 2 (1) (a) of the Rules of the Supreme Court covers matters from a registrar for which appeals lay to a judge in chambers: Except as provided by rule 2, an appeal shall lie to a Judge in Chambers fr judgment, order or decision of a Master, the Admiralty Registrar or a Regi the Family Division. bm any strar of Order 58, rule 2 (1) (b) of the Rules of the Supreme Court covered matters from a ante which are appealable to the court of appeals: An appeal shall with leave lie to the Court of Appeal from any judgment, prder or decision of a Master given or made ... on an assessment of damages or of the value of goods under Order 37 or otherwise, or an assessment of interest Order 58, rule 2 (1) (b) of the Rules of the Supreme Court bases on legislation or jurisdiction of the Court of Appeals. Consequently, under the Rules of the Supreme Court, | or Registrars on assessment of damages law, with leave of the Registrar, to the Court of / section 8 (b) of the Supreme Court of Appeal Act and Order 3, rule 34 of the Supreme Co law and practice, on appeals on assessment of damages, in the Court of Appeal in England in the Civil Procedure Rules 1998. The Civil Procedure Rules 1998, including their ra streamlined the appeal procedure. Appeals are covered generally under Part 52 of the C And ... peneral law governing the N65, appeals from Masters Appeal. This, according to urt of Appeal Rules, is the The law has not changed bust amendment in 2000, Vil Procedure Rules 1998. Rule 52.1 of the Civil Procedure Rules provides: (1) The rules in this Part apply to appeals to- (a) the civil division of the Court of Appeal; (b) the High Court; and (c) acounty court. The Civil Procedure Rules 1998 do, unlike our Section 21 of the Supreme Court of Appeal Act require, except in few circumstances, permission for appeal by the court below or the court itself, Rule 52.3: (1) an appellant or respondent requires permission to appeal- (a) where the appeal is from a decision of a judge in a county courtjor the High Court, except where the appeal is against- (i) a committal order; (ii) a refusal to grant habeas corpus; or (iil) a secure accommodation order made under section 25]of the Children Act 1989; or (b) as provided by the relevant practice direction. (other enactments may provide that permission is required for] particular appeals). Rule 52.2 of the Civil Procedure Rules 1998 enjoins parties to an appeal to comply with the relevant practice direction, Practice Direction-Appeals. Paragraph 2.1 of the Practice Direction provides that it applies to all appeals to which Part 52 applies except where specific provision is made for appeals to the court of appeal]. Paragraph 2A.2 deals with appeals to the court of appeals: Moto v Sabadia (2014) Civil Appeal No 2 (MSCA) (unreported) CHIKOPA, MWAUNGULU, KAMANGA, JAA pas 10 15 20 25 30 @. 40 45 Moto v Sabadia (2014) Civil Appeal No 2 (MSCA) (unreported) CHIKOPA, MWAUNGULU, KAMANGA, JAA The Registrar shall have the same jurisdiction, powers and dudes as the Mdsters of the Supreme Court, Clerks of Criminal Courts, Registrars and the like o fficers of the Supreme Court of Judicature and the Court of Criminal Appeal in England, in addition to such other jurisdiction, powers and duties as are given him by [these Rules or such further powers and duties as the Chief Justice nay direct. This Registrar is distinct and is not the same one, at least jurisdictionally, as the Registrar of the High Court who is governed by the Courts Act and the High Court (exercise of the jurisdiction of the Registrar) Rules. This Registrar is governed by Section 8 of the Courts Act: The Registrar shall subject to any Rules of Court exercise jurisdiction, powefs and duties in extent and manner similar to those which under the Rules of the Supreme Court are attributable to and exercisable by a Master of the Supreme of Judicature and a Registrar of the High Court, and shall also exercise such jurisdiction, powers and duties as the Chief Justice may, from time to prescribe, by rule, for exercise by the Registrar. The Registrar of the High Court, apart from powers under Order 3 of the Supreme Court jurisdiction on appeals to or the Supreme Court. The jurisdiction of the Registrar of the F Supreme Court then and under the Civil Procedure Rules 1998 now, is granting permission rther time, bf Appeal Rules, has no ligh Court, according to r appeal to the Court of section 8 (1) of the Courts Act, is ‘subject to “any” Rules of Court.’ One such jurisdiction, vp under the Rules of the Appeals on appeals from judgments made for assessment of damages. The jurisdiction to Brant permission in such judgments presupposes that appeals lie from the Registrar’s judgment on assessment to the Supreme Court. The rules of court provide for assessment of damages and, in relation to those assessments, an appeal ligs to the Court of Appeal. There is no limitation to the right of appeal to the Court of Appeal by the Supreme Court of Appeal Act, the Supreme Court of Appeal Rules and the Civil Procedure Rules. The limitation to this pervading power cannot be effected by rule 3 of the High Court (exercise of the jurisdiction of the Registrar) Rules. Section 8 (b) of the Supreme Court of Appeal Act and Order 3, rule 34 of the Supreme Court of Appeal Rules are very clear about where to go where a point is not covefed by the Supreme Court of Appeal Rules. It certainly is not to the Courts Act or rules made under the Courts Act. Rule 3 of the High Court (Exercise of the Jurisdiction of the Registrar) cannot be invoked. The law and practice in the Court of Appeal in England is that appeals from assessment of damages are to the Court of Appeal. Rule 3 of the High Court (Exercise of the Jurisdiction of the Registrar) Rules must} therefore, be understood, as referring to decisions, orders or directions on which a judge in chambers has appeal jyrisdiction on, not matters where the Court of Appeal, in our case the Supreme Court, has jurisdiction on. The Supreme Court of Appeals — not a judge in chambers — has jurisdiction on judgments from whoever in the High Court on assessment of damages. Most of the decisions of this court and the court below proceeded without a profound understanding of the High Court (Exercise of the Jurisdiction of the Registrar) Rules. The High Court (Exercise of the Jurisdiction of the Registrar) Rules are, strictly speaking, not provisions about the jurisdiction of the Registrar. Section 8 of the Courts Act covers that. The Hjgh Court (Exercise of the Jurisdiction of the Registrar) Rules are more about the exercise of a judge in chambers ver the jurisdiction of the Registrar of the High Court. The title of the rules says as much. The High Court (Exercise of the Jurisdiction of the Registrar) Rules are not about the powers of a Registrar of the High Court in relation to appeals to the Supreme Court. The functions of the Registrar of the High Court are covered in Order 3 of the Supreme Court of Appeal Rules. Moto v Sabadia (2014) Civil Appeal No 2 (MSCA) (unreported) CHIKOPA, MWAUNGULU, KAMANGA, JAA Page 7 10 15 25 30 35 40 45 50 Moto v Sabadia (2014) Civil Appeal No 2 (MSCA) (unreported) CHIKOPA, MWAU JAA the Supreme Court, one, therefore, has first to ascertain what, if any, was the position in the Court 1965, in this case, on appeals from the Registrar’s on judgments, decisions, and d specifically on judgments on assessment of damages before the High Court (Exercise of Registrar) Rules passed in 1985. Secondly, one has to consider whether rule 3 of the High| Jurisdiction of the Registrar) Rules, varied, supplemented, revoked or replaced the rules of the In the Rules of the Supreme Court 1965, appeals from all decisions were covered in | NGULU, KAMANGA, Rules of the Supreme rections generally and the Jurisdiction of the Court (exercise of the Supreme Court, 1965. Order 58, rule 2 (1) (a) and (b). There were in fact two rules: (a) One covering appeals from certain decisions of mastefs to a judge in Chamber and (b) one covering appeals from decisions of the master to the Court of Appeals. Order 58, rple 2 (1) (a) of the Rules of the Supreme Court, covering judgments, decisions or orders whose appeals lie to the judg¢ in chambers, provided: Except as provided by rule 2, an appeal shall lie to a Judge in Chambers from any judgment, order or decision of a Master, the Admiralty Registrar or a Regis}rar of the Family Division. Order 58, rule 2 (1) (a) of the Rules of the Supreme Court, just like Order 58, rule (2) of the Shpreme Court of Appeal Rules, was viz-a-viz appeals from judgments, decisions and orders from a Master or Regisfrar, a power conferring rule. It prescribes or conscribes the powers of a judge in Chambers. Consequently, Order 58, rle 2 (1) (b) of the Rules of the Supreme Court is a power conferring rule to Court of Appeal was viz-a-viz appeals frq and orders from a Master or Registrar on assessment of damages. It automatically excludes chambers and clothes the Court of appeal with the power to determine appeal from a re damages. Order 58, rule 2 (1) (a) and (b) of the Supreme Court of Appeal Rules provides: An appeal shall with leave lie to the Court of Appeal from any judgment, of m judgments, decisions the power of a judge in istrar on assessment of der or decision of a Master given or made ... on an assessment of damages orJof the value of goods under Order 37 or otherwise, or an assessment of intergst and where a judgment, order or decision of a kind referred to in paragraph (b) includes or involves a determination of any other matter, an appeal shall lie to the Court of Appeal in relation to such other matter. Order 58, rule 2 of the Rules of the Supreme Court provides for the need for leave of the Master: Leave to appeal to the Court of Appeal may be given by the Master from|whose judgment, order or decision the appeal is sought or by the Court of Appeal. From the Rules of the Supreme Court 1965, therefore, assessment awards by the registrar, just like assessments by a judge, were appealable to the Court of Appeal, not to a judge in chambers. Rule 3 of the High Court (Exercise of Jurisdiction of the Registrar) Rules does not supplement revoke or replace Order 58, rule 2 (1) (b) of the Rules of the Supreme Court 1965 dealing with app eals from judgments on assessment of damages. It cannot be argued that Rule 3 of the High Court (Exercise of Jurisdiction of the Registrar) Rules covers the 2 aspects of Order 58, rule 2 (1) (a) and (b) of the Rules of the Supreme Coprt 1965. It certainly, and most certainly, does not cover Order 58, rule 2 (1) (b) of the Supreme Court of Appeal Ruleg. 58, rule 2 (1) (a) and (b) but only to the extent of removing the word ‘judgment’ in Ordef It certainly varies Order 58, rule 2 (1) (a) of the Supreme Court of Appeal Rules 1965 and adding the word ‘direction’ to the matters therey covered. The variation actually removes the word ‘judgment’ in relation to matters that are appealable to a judge ir The rule, therefore, meant to exclude judgments in Order 58, rule 2 (1) (a) of the Rul In Chakwantha v Prime Insurance the lower court thought: Order 58, rule | of the Rules of the Supreme Court provided: “Except as provided by rule 2, an appeal shall lie to a Judge in Chambers from any judgment, order or decision of a Master, the Admiralty Registrar or a Registrar of the Family Division.” chambers. es of the Supreme Court. Moto v Sabadia (2014) Civil Appeal No 2 (MSCA) (unreported) CHIKOPA, MWAUNGULU, KAMANGA, JAA PageD 10 15 25 30 39 40 45 50 Moto v Sabadia (2014) Civil Appeal No 2 (MSCA) (unreported) JAA CHIKOPA, MWA UNGULU, KAMANGA, decisions of the registrar. While, therefore, in England appeals from registrars’ judgments, ¢xcluding judgments on assessment of damages, lay to a judge in chambers, under Rule 3 of the High Court (Exercike of Jurisdiction of the Registrar) Rules, such judgments do not any more lie to a judge in chambers in Malawi. Such judgments take two forms. The first category refers to judgments such as judgnjents in default of notice of intention to defend or pleadings where there is no assessment of damages. A defendant faded with such judgments has two options. The defendant can appeal against such a judgment. It is a final judgment The appeal lies to the Court of Appeal. In England, if the defendant was minded to appeal, the appeal under Order] 58, rule 2 (1) (a) of the Rules of the Supreme Court, 1965, would lie to a judge in chambers; not so in Malawi beca Use the word ‘judgment’ has been dropped from Order 58, rule 2 (1) (a) of the Supreme Court of Appeal Rules in Rule 3 of the High Court (Exercise of Jurisdiction of the Registrar) Rules. The second option is where the defendant, rather than appeal, applies under the relevant rules of court to set aside the judgment. The parties, this time have tq appeal to the judge in chambers against the decision not to or to set aside the default judgment. Parties can, subsequgntly, appeal to the court of appeal against the decision of a judge in chambers. The second category involves judgments from registrars that involve assessme judgments occur in two circumstances: where there is a judgment in default (not appealed fr registrar, without the intervention of a judge, enters judgment for damages to be assessed; ar full hearing on the merits, orders that damages be assessed by the registrar. What is common they base on a final judgment for which the award of assessment of damages is its completion. nt of damages. These bm or set aside) and the d where a judge, after a to both scenarios is that They are situations of split processes, one involving the final judgment on liability amd the other to ascertain the damages to complete the judgment. The latter judgment is, in itself, final. The matter w4s covered at the time of the decisions of Banda and another v Chunga and Mpinganjira v Attorney General by O Order 58, rule 1A (4) of the Rules of the Supreme Court of Appeal Rules, 1965. Order 58, ru the Supreme Court of Appeal Rules, 1965 provided: A judgment or order shall be treated as final if the entire cause or matter (subject only to any possible appeal) have been finally determined whichev4 the court below had decided the issues before it. Order 58, rule 1A (4) of the Rules of the Supreme Court of Appeal Rules, 1965 provided: For the purposes of paragraph (3), where the final hearing or the trial of al or matter is divided into parts, a judgment or order made at the end of ar shall be treated as if made at the end of the complete hearing or trial. They are, therefore, judgments in their own right and are therefore specifically, in England, c 2 (1) (b) of the Supreme Court of Appeal Rules 1965 and have been clearly removed from C the Supreme Court of Appeal Rules 1965 by our Rule 3 of the High Court (Exercise of Jurig Rules. er 58, rule 1A (3) and e 1A (3) of the Rules of would r way cause y part pvered by Order 58, rule rder 58, rule 2 (1) (a) of diction of the Registrar) Judgments on assessment of damages are judgments in their own right and, therefore, amenable to appeal to the Supreme Court, not to a judge in chambers. The matter was considered at length in Chakwyntha v Prime Insurance (2010) Civil Cause No 2195 (HC) (PR) (unreported) and later Sukali v Southern Bottlers and| Injury Case No 774 (MHC) (PR) (unreported). In the earlier case, the court below said: Finally, it must be remembered that proceedings on assessment of damages fact trials, in open court, where witnesses are called. A close reading another (2012) Personal are in of the learned authors in The Supreme Court Practice 1999, Sweet & Maxwell, 1998 and The Civil Procedure 2001, Sweet & Maxwell, demonstrates that rhatters appealable to a Judge in Chambers are where affidavit evidence is accepted never Moto v Sabadia (2014) Civil Appeal No 2 (MSCA) (unreported) CHIKOPA, MWAUNGULU, KAMANGA, JAA Page 1 1 10 15 20 25 30 40 45 | Moto vSabadia (2014) Civil Appeal No 2 (MSCA) (unreported) CHIKOPA, MWA JAA same tier of jurisdiction as the Master, in reviewing the evidence, leave Supreme Court to only deal with matters of law and not facts. It sounds odd to me that after hearing the matter in open court, the evidence then be reviewed by a Judge in Chambers. From legislation under rules of court, therefore, appeals from registrar on assessme Supreme Court of Appeal. The latest decision of this court, at least the ones cited before this ¢ conclusion in the course of which one decision contrary was overruled. As a matter of prit] follow the latest decision and depart from it at the peril of reasons. There are no such reasons the latest decision of this court and to that end it is important to review previous decisions coming to the conclusion arrived in this matter. The position taken is that in the first decisio and another v Chunga. This court decided Banda and another v Chunga on 6 March 1990. The decision, cd 38, rule 2 (1) (a) and (b) of the Rules of the Supreme Court 1965, the rules of court applicable UNGULU, KAMANGA, s the vould ht of damages lie to the ourt, comes to the same ciple, this court should and we can only affirm AS a way of reasons for h of this court in Banda rrectly, based on Order to the High Court under Section 29 of the Courts Act and reserve rules of this court under Section 8 (b) of the Supremhe Court of Appeal Act. That case is exactly the present. The appeal to this court, unknown to the parties and the co decision of the court below to a Judge in chambers of the judgment of the Registrar on asses jurisdiction question was raised by this court itself. This court required the parties to address The point put vehemently was that the appeal was properly before a Judge in chamb the High Court (Exercise of the Jurisdiction of the Registrar) Rules. It was argued that Orde of The Supreme Court, 1965, contradicted or rather, was revoked by Rule 3 of the High Jurisdiction of the Registrar) Rules. In rejecting the argument, Banda JA, as he then was, \ then was, and Mkandawire JJA, agreed said: We have carefully considered these arguments and we have also looked provisions under the Courts Act and we are unable to accept cou submissions. We are satisfied that there is no inconsistency betweq provisions of Order 58, rule 2 paragraph (b) and the provisions under the Court (Exercise of Jurisdiction of Registrar) Rules. There would have bd inconsistency if the latter rules had provided that an appeal on an assessm damages from the Registrar shall lie to the High Court. In the absence q consistency, we find that Order 58, rule 2 paragraph (b) is a part of our la its provisions should have been followed. Under this Order the High Court a competent tribunal to hear an appeal from the District Registrar. It is c us, therefore, that this appeal is not properly before us. This court, properly, considered Order 58, rule 2 (1) (b)) of the Supreme Cour] irt below, was from the pment of damages. The it on jurisdiction. ers because of Rule 3 of r 58, rule 2 of the Rules Court (Exercise of the vith who Unyolo, as he lat the nsel’s nm the High en an ent of f this Ww and is not ear to of Appeal Rules as a standalone provision on specific matter. This court, however, should not have even compared Rule 3 of the High Court (Exercise of the Jurisdiction of the Registrar) Rules with Order 58, rule 2 (1) (b) of the S Rules. The Supreme Court of Appeal Rules are generic rules based, as in this case, specific the Court of Appeal in England the law and procedure is that Court of Appeal in England det¢ leave, from a judgement of assessment of damages by a master. In this court, the situation is n¢ 21 of the Supreme Court of Appeal Act makes judgments, final or, as happens where there is upreme Court of Appeal statutory provisions. In rmines all appeals, with t any different. Section assessment of damages, values or interest, split from the High Court or a Judge thereof appealable to this court. ie 3 of the High Court (Exercise of the Jurisdiction of the Registrar) Rules, which could only affect the rules of th High Court, namely the Rules of the Supreme Court, could not affect statutes or rules of cou Moto v Sabadia (2014) Civil Appeal No 2 (MSCA) (unreported) CHIKOPA, MWAUNG JAA court applicable to the rt of the Supreme Court pBULU, KAMANGA, Page 1 3 10 1 20 25 30 40 45 an Rig Moto vSabadia (2014) Civil Appeal No 2 (MSCA) (unreported) JAA any time be varied supplemented, revoked or replaced by rules of court CHIKOPA, MWAUNGULU, KAMANGA, ade under this Act, surely rule 3 revoked the provisions of Order 58, rule 2 in so far as it regulates appeals to the “Court of Appeal on assessment of damages.” 3 is further entrenched by rule 11 of the Courts (High Court) Procedure in Di ule ict Registries Rules which states that an appeal shall lie from any decision, order or direction of a District Registrar in the same way as an appeal lies from] any decision, order or direction of the Registrar under Rule 3 of the High Court (Exercise of the Jurisdiction of the Registrar) Rules. There should not, in 2006, have been reference to Order 58, rule 2 (1) (b) of the Rules 1965, in relation to this court. Paragraph 2A 1-4 of the Practice Direction-Appeals applied un Supreme Court of Appeal Act and Order 3, rule 34 of the Supreme Court of Appeal Rules. This why it thinks that there were differences between Rule 3 of the High Court (Exercise of Registrar) Rules and Order 58, rule 2 (1) (b) of the Rules of The Supreme Court, 1965. Diffes Apart from the reason given in Banda and another v Chunga, the words ‘judgment’ 58, rule 2 (1) (b) are actually dropped in Rule 3 of the High Court (Exercise of the Jurisdiction There was no reference to the latest decision. What, therefore, was said in the comment o Chunga applies mutatis mutandis there should, therefore, have been no comparison between pf The Supreme Court, er Section 8 (b) of the court does not indicate the Jurisdiction of the ences, there were! and ‘decree’ in Order of the Registrar) Rules. n Banda and another v this rule and Order 58, rule 2 of the Rules of the Supreme Court, 1965 or Paragraph 2A 1-4 of Practice Direction — Appeals. The case, therefore, was properly doubted in Nasivaya v Attorney General. This court decided Nasivaya v Attorney General 26 February 2015. In this case the Order for an assessment of damages before the Assistant Registrar. The respondent was dis and appealed directly to a Judge in chambers purportedly under Rule 3 of the High Court (Ex of the Registrar) Rules. The Judge in chambers allowed the respondent’s appeal. The appel Judges award then appealed to the court. It appears the jurisdiction question was once again r court thought that, in view of Order 58, rule 2 (1) (b) of the Rules of The Supreme Court, have been made to this court. The court, rejecting Gani v Chande, thought that Banda and another v Chunga and General were properly decided. The court agreed with this courts’ decision in Banda and and was no conflict between Rule 3 of the High Court (Exercise of the Jurisdiction of the Regist rule 2 (1) (b) of the Rules of The Supreme Court, 1965. The court drew the distinction respondent obtained an katisfied with the award trcise of the Jurisdiction ant dissatisfied with the nised by this court. This 1965, the appeal should Mpinganjira v Attorney ther v Chunga that there rar) Rules and Order 58, between orders that the Registrar makes in chambers which, by their nature, are amenable to be held before a Judge ip chambers. It reasoned, therefore, that judgments on assessment of damages would not be amenable for appeal to a | the court of appeal. The comments made on Banda and another v Chunga applied mutat Attorney General should, however, have proceeded on that the Civil Procedure Rules, 19 apply to this court. All in all, as decided in Nasiyaya v Attorney General, Gani v Chande w It is the only inconsistence in the consistent decisions of this court that appeals from any asse especially on split judgments involving assessment of damages, should be made to this cour The disposal of the case we want to adopt is the one in Banda and another v C] reasons that Banda, JA, expressed: udge in chambers but to is mutandis. Nasiyaya v )8, as amended in 2000, las not correctly decided. ssment of damages, more E, hunga. It is for the very We have considered the possibility of treating the appeal before us as i come directly from the District Registrar but such a course of action w it had Id not have overcome the difficulty of the arguments which have been advanced before us which have been based on the findings of and the award made by t Court. e High In our view the failure to bring the appeal directly from the [District Moto v Sabadia (2014) Civil Appeal No 2 (MSCA) (unreported) CHIKOPA, MWAUNGULU, KAMANGA, JAA Page 1 5 10 a5 20 25 30 @. 40 JAA The relevant court may order the appeal to be transferred to the Court of Appeal. (the Masters of the Rolls has the power to direct that an appeal which would be heard by a county court or the High Court should be heard instead by the Court of Appeal — see section 57 of the Access to Justice Act 1999) Moto v Sabadia (2014) Civil Appeal No 2 (MSCA) (unreported) CHIKOPA, MWAUNGULU, KAMANGA, (2) The Master of the Rolls of the Court of Appeal may remit an appeal tq the court in which the original appeal was or would have been brought. This Court in Nasiyaya v Attorney, decided in 2015, had not to choose between the irreconcilable practices in Banda v Chunga and Mpinganjira v Attorney General, decided before 1999 when the access t D Justice Act passed. Consequently, this court under section 57 of the Access to Justice Act wants to consider transferring to itself the appeal. If there is any need for a reason for the transfer, it is that this court, not a judge in chambers, has jurisdiction. The appeal to a judge, however, was a nullity. There is very little, if anything at all, that can be that are a nullity. The parties were certainly unaware of the Nasivaya decision and the most detailed Hone with proceedings easoning in this case. Given the way decisions are reported, the parties were in the same problem as the court and the judges in the court below. The parties should, therefore, be in the same position after delivery of this judgment as|they were on the date of the Registrar’s judgment on assessment of damages — without need for an order for extensi appeal. In other words time and manner in which to appeal to this Court run with effect from t Kamanga, JA bn of time in which to day. . I had the opportunity to read in advance the judgment which Justice of Appeal Mwaungulu has read. I agree, and I trust, as he does that this decision will settle the uncertainty that dogged this court and th¢ court below. Made this 20" of June 2017 DAA UY JUSTICE OF APPEAL Moto v Sabadia (2014) Civil Appeal No 2 (MSCA) (unreported) CHIKOPA, MWAUNGULU, KAMANGA, JAA Page L 7