Likongwe v Nutricom Food and Beverages Limited (Personal Injury Cause 569 of 2021) [2022] MWHC 243 (19 September 2022)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL DIVISION PERSONAL INJURY CAUSE NO. 569 OF 2021 (Before Honourable Justice Mambulasa) BETWEEN: LUCTOUS LIBONGWE...............cc ccc csccsscesscecceesseceescessensees CLAIMANT -AND- NUTRICOM FOOD AND BEVERAGES LIMITED.............. DEFENDANT CORAM: HON. JUSTICE MANDALA MAMBULASA Mr. Nuru Alide, Advocate for the Claimant Mr. Khumbo Bonzoe Soko, Advocate for the Defendant Mr. Obet Chitatu, Court Clerk/Official Interpreter RULING MAMBULASA, J [1] [2] [3] [4] Introduction This is the Defendant’s application for stay/suspension of proceedings in the High Court brought under Order 10, rule 1 of the Courts (High Court) (Civil Procedure) Rules, 2017 as well as under the Court’s inherent jurisdiction. The application is supported by a Sworn Statement made by Advocate Mr. Khumbo Bonzoe Soko. On or about 25" November, 2021 the Claimant commenced legal proceedings against the Defendant in the Resident Magistrate Court at Midima. A Default Summons has been exhibited by the Defendant to the Sworn Statement in Support of the application for stay/suspension to that effect. The claim in the Resident Magistrate Court at Midima is substantially the same as that which the Claimant is prosecuting in this Court. In the lawsuit at the lower court, the Defendant filed its Defence. The said Defence has also been exhibited to the Sworn Statement in Support of the application for stay/suspension of proceedings. The Defendant filed an application in the lower court to have the matter struck out for being an abuse of court process. The application in the lower court was yet to be heard at the time of hearing of this application. The said application has further been exhibited to the Sworn Statement in Support of the application for stay/suspension of proceedings. The Defendant avers that it would be an abuse of this Court’s process for the Claimant to be allowed to be litigating in two courts at the same time in respect of the same subject matter. [5] [6] [7] [8] [9] The Defendant depones that in order to protect the integrity of its processes, the Court should stay/suspend these proceedings until the application to have the Resident Magistrate Court matter struck out for being an abuse of court process is heard and disposed of in that court. The Claimant opposes this application. He filed a Sworn Statement in Opposition through his legal practitioner, Asma Osman Kapoto. The Claimant states that he filed a Summons in this matter on 28" May, 2021 and that the same was only issued by the court on 5" August, 2021. The Claimant further avers that through a relative, the same action was commenced in the Resident Magistrate Court at Midima on 2™ November, 2021. However, the Claimant advised his former legal practitioners, Messrs Chidothe, Chidothe & Co. to withdraw the action they commenced in the lower court and believed the lower court action had been withdrawn. There is an exhibit of the Notice of Withdrawal of the action in the lower court which has been attached to the Sworn Statement in Opposition. The Claimant concludes by stating that the interests of justice tilt towards proceeding with mediation in this Court and dismissing the application for stay/suspension of proceedings. In its Sworn Statement in Reply to the Sworn Statement in Opposition, the Defendant averred that it was yet to be served with the said Notice of Withdrawal of the action and that in any event, in terms of Order XVI, rule 2 of the Subordinate Courts Rules, it 1s entitled to costs of the subordinate court proceedings. [10] [11] [12] The Defendant depones that in so far as the issue of costs remain unresolved, the implications are that there remain two live proceedings in two separate courts in respect of the same subject matter. Issues for Determination There are two issues for determination before this Court. First, whether or not there are two live proceedings before different courts in respect of the same parties and subject matter? Second, if the answer to the first issue 1s answered in the affirmative, whether or not this Court should grant stay or suspension of proceedings in this Court until costs for the lower court proceedings are agreed by the parties or assessed by the Court and paid by the Claimant to the Defendant? The Law The Court has inherent jurisdiction to prevent its process from being abused. Maintaining two applications or claims either in the same or in two different courts in respect of the same subject matter is a classic case of abuse of court process. One authority, among many, for this proposition is the Democratic Progressive Party -vs- The Attorney General |! ' Constitutional Referral No. 3 of 2021 (High Court of Malawi) (Principal Registry) (Unreported). See also Centre for Environmental Policy (CEPA), National Youth Network on Climate Change (NYNCC) and Movement for Environmental Action -vs- Southern Region Water Board (SRWB) and Alghanim International General Trading and Contracting Company/Plem Construction JV (AIG/PLEM) Miscellaneous Cause No. 9 of 2022 (High Court of Malawi) (Principal Registry) (Civil Division) (Unreported). [13] [14] [15] Where two applications or claims are in different courts relating to substantially the same subject matter, the courts grant stay of one proceeding until the other is concluded. This ensures order and that the administration of justice is not brought into disrepute among many reasons. One classic example in this regard where a stay/suspension of proceedings was granted by no lesser a court than the Supreme Court of Appeal itself is the case of Malawi Communications Regulatory Authority -vs- Daniel Datch et al.? In that case, Mzikamanda SC JA, as he then was, stated: When two or more cases are filed between the same parties on the same subject matter or substantially similar matter, in two or more or different courts, a competent court has power to stay the proceedings in another court... The power to stay proceedings is inherent and 1s not necessarily dependent on any specific statutory provision. In Bonaventure Systems Inc. -vs- Royal Bank (1987)°it was stated as follows: The court has always had an inherent jurisdiction to grant a stay of proceedings whenever it is just and convenient to do so, in order to control its process or prevent an abuse of that process... Order XVI of the Subordinate Courts Rules is on Withdrawal and Settlement. Rules 1, 2 and 4 provide as follows: Rule 1 2 Malawi Supreme Court of Appeal Miscellaneous Application No. 39 of 2021 (Unreported). 3 1986 CanLII 2550 (ON SC), 57 O. R. (2d) 270. The plaintiff may at any time before judgment withdraw any proceedings wholly or in part by giving notice to the defendant. Rule 2 The defendant shall thereupon be entitled to costs of the proceedings or such part thereof. Rule 4 If the costs of any withdrawn proceedings have not been paid, the Court may stay any subsequent proceedings of a like nature pending payment thereof. [16] Order XXX of the Subordinate Courts Rules is on Costs, Allowances and [17] [18] Court Fees. Rule 2 is couched in the following terms: Costs shall not be taxed but shall be assessed in accordance with the scale and rules in the Second Schedule by the Court at the trial or hearing, on settling the terms of the judgment or order, and shall be added to or set off against any sum payable thereunder. Costs may be made a charge on the subject matter of the proceedings. Analysis and Application of the Law to the Facts The first issue that the Court has to grapple with is whether or not, there are two live proceedings before different courts in respect of the same parties and subject matter. The Defendant contended that the Claimant is maintaining two actions 1n two different courts in respect of the same subject matter. The first action is 6 [19] [20] Lucious Likongwe -vs- Nutricom Foods and Beverages Company Limited, Civil Cause No. 2502 of 2021 which was filed in the Resident Magistrate Court sitting at Midima. In this action, he is claiming for damages for: pain and suffering, loss of amenities of life, inconvenience, the sum of MK30,000 being payment for a medical report and costs of the action. The injury that the Plaintiff suffered arose from consumption of contaminated Kumbusha Ginger Drinks manufactured by the Defendant. The Claimant alleged that the Defendant manufactured the said drinks negligently. The second action is Lucious Likongwe -vs- Nutricom Food and Beverages Ltd, Personal Injury Cause No. 569 of 2021 which was filed in the High Court of Malawi, Principal Registry, Civil Division. In this action, the Claimant is claiming for damages for: pain and suffering, loss of amenities of life and costs of the action. The injury that the Claimant suffered arose from consumption of contaminated Kumbusha Ginger Drinks manufactured by the Defendant. The Defendant argued that the parties are the same and so too the nature of the claim. This action in the High Court of Malawi was coming up for mediation when the Defendant took out the present application. The Defendant submitted that the alleged Notice of Withdrawal of the action in the Resident Magistrate Court at Midima was yet to be served on it. It also argued that, in any event, in terms of Order XVI, rule 2 of the Subordinate Courts Rules, it is automatically entitled to costs of the subordinate court proceedings following the withdrawal of the same. These costs will either have to be agreed by the parties or assessed by the court and that they may actually be subject of an appeal to the High Court, in a worst-case scenario. The Defendant submitted that in so far as the issue of costs remains 7 [21] unresolved, the implication is that there remain two live proceedings in two separate courts in respect of the same subject matter. In short, assessment of legal costs is part and parcel of legal proceedings. The Defendant contended that the conduct of the Claimant in litigating in two courts at the same time is one that is deserving of a sharp censure and most solemn denunciation. It therefore finally submitted that this remains a proper case to grant stay of proceedings in the High Court of Malawi matter. More so, because as 1s clear from the rules cited herein, the fact that a matter has been withdrawn, does not mean that the matter is necessarily over. The Claimant argued that the High Court of Malawi matter was the first to be filed. It was filed on 28" May, 2021 even though the Summons was issued by the Court on or about 5" August, 2022. The Resident Magistrate Court proceedings at Midima were commenced on or about 25" November, 2021 and has since been withdrawn as 1s clear from the Notice of Withdrawal of the action. Advocate Mr. Alide further argued that the Defendant has not demonstrated anywhere that it will suffer any prejudice if mediation was to be proceeded with in this Court. He also contended that the Claimant knew the effect of withdrawing an action, otherwise, he would not have filed the Notice of Withdrawal as it were. Advocate Mr. Alide submitted that the Claimant should actually be commended for the action that he took in withdrawing the latter action because it actually prevents multiplicity of actions. He contended that, that is the whole essence of Order XVI, rule 1 of the Subordinate Courts Rules which 1s to the effect that a plaintiff may at any time before judgment, withdraw any proceedings wholly or in part by giving notice to the defendant. Advocate Mr. Alide went on to argue that the fear of conflicting judgments would not arise in this case because the issue of liability was never decided in 8 [22] the lower court. The issue of liability is yet to be decided even here in the High Court of Malawi. Furthermore, so, Advocate Mr. Alide further argued, issues in the two courts are different. In the lower court, the only outstanding issue is that of costs, while here in the High Court of Malawi, the court has to determine the issue of liability first and costs will follow the event later on. Advocate Mr. Alide passionately argued that Order XVI, rule 4 of the Subordinate Courts Rules does not apply to this case. He contended that the rule is very clear that the Court may stay any subsequent proceedings of a like nature pending payment thereof. The action in the High Court is not a subsequent proceeding. It was actually the first one to be filed by the Claimant. This Court agrees with the Claimant that in this case, there is no fear of two different courts rendering conflicting judgments or orders on the same or substantially similar matter and between the same parties. That is so because as correctly argued by the Claimant, the lower court never dealt with the issue of liability. The action was withdrawn before any judgment could be rendered by the court. The only outstanding issue in that court 1s one of costs. It is this Court that will deal with the issue of liability of the Defendant in the action that is before it. It must quickly be mentioned that the Court has taken it for granted that the parties to each action are the same because the parties seemed to have agreed on that and so the Court will proceed on that same assumption. The above notwithstanding, a closer look at the name of the Defendant in the two actions reveals that in the lower court, 1t had the word, company in it, which is not the case in the High Court of Malawi action. The Court reiterates that it will leave this matter at that, as it never benefitted from arguments from [23] [24] the parties’ advocates on it. The Court however reminds the parties that, “[w]e are in the realm of the law and nomenclature matters’. This Court is persuaded by the submission of the Defendant that assessment of legal costs is part and parcel of legal proceedings. Where such costs, or costs of the action, or party and party costs as they are variously called, have not been agreed by the parties or assessed by the court and paid by one party to the other, technically, legal proceedings cannot be said to have been concluded or to have come to an end.” The Court observes that Order XVI, rules 1 and 2 of the Subordinate Courts Rules cannot be read in isolation. They must be read along with Order XXX, rule 2 of the Subordinate Courts Rules which requires that assessment by the Court shall be on settling the terms of the judgment or order. In other words, even though, rules 1 and 2 of Order XVI of the Subordinate Courts Rules create an impression that it is automatic that the Defendant shall thereupon be entitled to costs of the proceedings or such part thereof, the truth of the matter is that no party is entitled to costs unless a court orders so. This understanding would ensure that there is no conflict among the rules of these two Orders. It therefore behooves the lower court to still make a specific order as to costs to the defendant where an action has been withdrawn by the plaintiff. Where no such specific order is made by a court, it is incumbent * Constitutional Referral No. 3 of 2021 (High Court of Malawi) (Principal Registry) (Unreported), paragraph 116. > See for instance, Zhe State (On the application of Centre for Mindset Change Limited) -vs- The President of Malawi et al, Judicial Review Cause No. 47 of 2021 (High Court of Malawi) (Principal Registry) (Civil Division) (Unreported). 10 upon a defendant to apply to the court and ask for it as assessment of costs can only proceed on settling the terms of the judgment or order as we have seen. [25] Looking at the spirit behind Order XVI, rules 1, 2 and 4 of the Subordinate Courts Rules, it is apparent that withdrawing an action does not necessarily bring those particular proceedings to an end, unless and until costs payable up to the point of withdrawal but in any event before judgment, are agreed by the parties or assessed by the court and paid by the plaintiff to the defendant. It is only when such costs have been paid by the plaintiff to the defendant when those legal proceedings could be said to have been concluded or ended. In this case, costs are yet to be agreed by the parties or assessed by the lower court. They are also yet to be paid by the plaintiff to the defendant in the lower court. Gladly, in this case, the Claimant fully appreciates the effect of filing a Notice of Withdrawal of an action. It is not without consequences. This Court does not find favour with the argument that the action in the lower court was filed by the Claimant’s relation. The Details of the Claimant in the action in the High Court of Malawi show that he was 42 years old at the time he filed the Summons in May, 2021. No reason was given in the Sworn Statement in Opposition to the application why a nameless relation had to file another action for him in the lower court when he was not a person under disability (minor or a person of unsound mind as envisaged by the law).° Actually, it does not matter to this Court as to who filed the Default Summons on his behalf. It was simply an abuse of court process and should not be condoned. To the extent that the combined effect of Orders XVI and XXX of the ° See for instance, section 2 (3) (a) of the Limitation Act, Cap. 6:02 of the Laws of Malawi. 11 Subordinate Courts Rules provide for mechanisms of dealing with the issue of costs after an action has been withdrawn by the plaintiff, which mechanisms include assessment of such costs where there is no agreement by the parties, and assessment of costs being part and parcel of legal proceedings, this Court has no difficulty to find that there are currently two live proceedings, one before the Resident Magistrate Court at Midima and another one in this Court. The Court agrees with the Defendant that the order on assessment of costs by the lower court is appealable to the High Court as it is treated as a final judgment.’ In the event that there is such an appeal, it would not be desirable to have such satellite litigation along with the action before this Court. One action must be concluded to its finality before the other one is heard. This therefore disposes of the first issue. [26] In view of the foregoing, it follows that to ensure some orderliness in the way litigation 1s conducted in our courts, the parties should fully exhaust the issue of costs in the lower court first before the action in this Court 1s proceeded with to mediation or any other step or application. This means that the application which the Defendant brought in the lower court to have the action struck out for being an abuse of court process has been overtaken by events. The Court therefore proceeds to grant stay/suspension of proceedings in the action before this Court pending the agreement of the parties as to the quantum of the costs payable or assessment of the costs by the lower court and payment of the same by the plaintiff to the defendant. 7 See section 20 of the Courts Act, Cap. 3:02 of the Laws of Malawi. 12 [27] Costs are awarded in the discretion of the Court as is provided by law.® Costs of this application shall be for the Defendant. Finding and determination [28] In view of the foregoing, it is this Court’s finding and determination that there are two live proceedings in two different courts by the same parties in respect of the same subject matter, as such, the action in the High Court is stayed/suspended until the issue of costs is finally resolved in the subordinate court where the subsequent action was filed by the Claimant. [29] Made in open court this 19" day of September, 2022 at Blantyre, Malawi. f nth L crwe M. D. MAMBULASA JUDGE 8 Section 30 of the Courts Act, Cap. 3:02 of the Laws of Malawi. See also Order 31 rule 3 (1) of the Courts (High Court) (Civil Procedure) Rules, 2017. 13