George Chilimba v Mickson Chiseko & Prime Insurance Company Limited (Civil Cause 64 of 2017) [2018] MWHC 1240 (21 May 2018)

THE REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY CIVIL CAUSE NO.64 OF 2017 BETWEEN George Chilimba............................................................................................ Plaintiff and Mickson Chiseko...................................................................................... 1st Defendant Prime Insurance Co. Ltd...........................................................................2nci Defendant CORAM: Madalitso Khoswe Chimwaza, Assistant Registrar D. Silungwe, E. Chapo Mpandaguta Counsel for the Plaintiff Counsel for Defendant Court Clerk RULING ON THE REFERAL FOR ASSESSMENT OF DAMAGES FROM SUBORDINATE COURT introduction The plaintiff commenced action in the lower Couit of the Senior Resident Magistrates court for personal Injuries claims and the lower court made a Ending on liability and consequently referred the issue of assessment of damages to the High Court in its judgment at the request of the plaintiff. The request to refer matter to the High Court for assessment of damages was made by counsel for the plaintiff on the basis that it was viewed that the amount of award to be made by the court was going to be more than the civil jurisdiction limit of the Magistrate court which is K2,000,000.00. The defendants did not object to the referral of the matter to the High Court. This court however has noted the procedural irregularity in the manner this matter found its way to the High Court for assessment. The Law Section 46 of the Courts Act is clear on how a subordinate court can transfer proceedings from itself to another court in the following terms: Section 46 (1) Subject to any other written law a subordinate court may: (a) Transfer any proceedings before itself to a subordinate court of a lesser grade; (b) Transfer any proceedings before itself to any subordinate of a higher grade with the consent of the such court and; (c) Direct the transfer to itself of any proceedings before any subordinate court of a lesser grade. (2) A subordinate court shall comply with any direction given to it under subsection (1), Clearly, this provision empowers a subordinate court to transfer proceedings from itself to another subordinate court but not to the High Court. The only time that the rules allow transfer of proceedings from subordinate court is on the application of a party where a defence or counterclaim of the defendant is beyond the jurisdiction of the subordinate court. The application for transfer has to be made to the High Court. The High Court may grant the order and the action will proceed as if it had originally been instituted in the High Court. This is according to section 40 of the Court Act. It must be observed that even where the defence or counterclaim of the defendant exceeds the jurisdiction of a subordinate court, the subordinate court cannot transfer proceedings to the High Court. The provision empowers the High Court to transfer the proceedings from the subordinate court to the High Court. In the case of Gladys Ndunya vs GiftNdunya Miscellaneuos Matrimonial cause No. 24/15 Justice K. Nyirenda stated as follows: A subordinate court can only transfer proceedings to another subordinate court and not to the High Court. The Courts Act puts the matter in no ambiguous language that it is the High Court that can transfer to itself a case from a subordinate court. Neither the Courts Act nor the Subordinate Court Rules empowers a Magistrate court to ‘refer’ or ‘defer’ a matter to the High Court. This reasoning was followed and applied in the case of Regina Mulira vs Malawi Sun Hotels Ltd Miscellaneous Civil No. 42/16 in which a transfer of proceedings from the lower to the High Court for assessment purposes was dismissed by Assistant Registrar. In the instant case it is the finding of this court that the transfer of the proceedings to the High Court was not sanctioned by the High Court, therefore the High Court cannot assume jurisdiction basing on the referral or transfer of proceedings from the subordinate court. The law is clear in Section 41 of the Courts Act, that where a party relinquishes his claim to be in the jurisdiction of a subordinate court, he cannot later bring the subsequent proceedings in any court in respect of the relinquished part. Any court in this case includes the High Court. For the above stated reasons this court will not proceed to assess damages. The matter is sent back to the subordinate court, the Court of Senior Resident Magistrate to proceed with the assessment of damages according to its jurisdiction. Matter to be set down within 60days from today. Either party has the right to appeal against this decision. Made in Chambers this 21st day of May, 2018 at Lilongwe. Madalitso IC. Chimwaza ASSISTANT REGISTRAR