Malidadi v Malawi Housing Corporation (Civil Cause 118 of 2015) [2017] MWHC 33 (2 February 2017)

-,..._ .... G 1--f , .... - .. ---. ..._ __ ; .. ,, I L /Dr-. . ' ,.,,... ......... J{. ILJJ~·'r' . f • • : :! '-'rr 4 ~ ....... ...__~, MALAWI JUDICIARY IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NUMBER 118 OF 2015 BETWEEN: ALICE JUMA MALIDADI ...................... PLAINTIFF/ JUDGMENT CREDITOR -AND- MALAWI HOUSING CORPORATION ..... DEFENDANT/JUDGMENT DEBTOR CORAM: TAMANDA C. NYIMBA: Assistant Registrar Mickeu s / Kamkwasi Katangwe / Matumbi Mrs. Phombeya : Counsel for the Plaintiff/ Judgment Creditor : Counsel for the Defendant j Judgment Debtor : Court Clerk and Official Interpreter RULING 1. 1 The question this Court has to resolve in this ruling is whether the plaintiff should be granted a garnishee order absolute on the funds of the defendant held at various commercial banks or this Court should rule in the manner prayed by the defendant that the relevant judgment debt be paid into court. In this ruling the plaintiff and the defendant shall also be referred to as judgment-creditor and judgment-debtor respectively. 1.2 I must state at the outset that I intensely hoped that I would be able to synopsize the history of this matter so as to make the ruling herein as brief as possible. Unhappily, I have been unable to avoid presenting a comprehensive narration of the background in view of the fact that the same is essential for the parties to fully appreciate the finding this Court makes in the final analysis . 1.3 On 19th March 2015 , by way of a generally endorsed writ of summons, the ./ · ...... , p laintiff commenced proceedings against the defendant claiming a · .. p ermanent injunction order restraining the defendant, its agents and/ or servants from evicting the plaintiff from house number KJ 240, damages for trespass, damages for inconvenience and costs of the action. The defendants did not deliver a defence. Consequently, on 4th August 2015, a default j udgment was entered in favour of the plaintiff. 1.4 Next, the matter was set down for assessment of damages on 9th June, 2016. Correspondingly, the defendants took out a summons to set aside the plaintiffs default judgment which application was equally returnable on 9th June, 2 016 . At the hearing of the aforementioned two applications before my sister Assistant Registrar, Her Honour Kanthambi, it transpired that Counsel for the plaintiff excusably appeared late. In the circumstances, the Court ruled and directed that the defendant's application be prudently brought before a Judge it having been observed that the default judgment was entered by a Judge . 1.5 Regarding the assessment of damages proceedings, the Court decided to a djourn t he same sine die. I should remark that it is fairly easy to appreciate or justify the open-endedness of the adjournment in this regard because surely a determination of the defendant's application to set aside the default judgment would inform whether or not damages would proceed to be assessed. 1.6 Surprisingly, with due notice to the defendant, the plaintiff caused assessmen t of damages proceedings to be conducted on 30th June, 20161. At the s aid hearing, the defendant or its counsel did not appear. The Court proceeded to hear evidence from the plaintiff. Thereafter the Court, in summary fashion, awarded the plaintiff a global sum of MK3,000,000.00 as damages for inconvenience, embarrassment and trespass to property. 1.7 On 13th J u ly 2016 the defendant, without notice to the p laintiff, obtained a stay of execution of the order on assessment of damages . On 20th July 2016, with notice to the defendant, the plaintiff brought an application to set aside the stay order. The plaintiff's applicat ion was returnable on 29th July 201 6 but on this day, yet again, neither the defendant nor its counsel 1 I say "surprisingly" advisedly because I was under the impression that the assessment of damages proceedings were adjourned sine die for the reason that they hinged on wh ether the Judge would dismiss the defendant's application to set aside the plaintiffs default judgment in which case the latter would proceed to have the damages assessed or whether the Judge would rule in favour of the defendant by setting aside the default judgment which would automatically result in annihilation of the assessment of damages hearing. bothered to attend hearing. The Court, having been satisfied that the defendant's absence was on this occasion inexcusable , went on to hear the plaintiffs application and made an order setting aside the earlier stay obtained by the defendant. 1.8 On 15th August 2016 the plaintiff in her capacity as a judgment-creditor brought an ex-parte application for a garnishee order nisi on the funds of the judgment-debtor h eld at ascertainable commercial banks. I granted the ord er. Further, the relevant garnishees were ordered to attend my Court on 6 th Septem ber 2016 for hearing of the judgment-creditor's application for the garnishee order nisi to be made a bsolute. 1.9 On 1st September, 2016 the judgment-debtor brought an ex-parte application for stay of execution of t h e order on assessment of damages , the garnishee proceedings and the garnishee order nisi on the grounds that the order on assessment was entered in the defendant's absence and that there is a summons to set a side the plaintiffs default judgment pending before the Judge. Deputy Registrar Usiwa -usiwa, as he then was , who handled this particular application directed that the same come inter partes. He proceeded to hear the application on 5th September 20 16 on which day he dismissed it on the grounds that a similar application was before Her Honour Kanthambi on 29th July 20 16 to which her Court granted an order setting aside an earlier stay given on 13th July 2016 and further that after the said order no appeal or application for re-hearing was lodged by the defendant as per the applicable rules and procedure. He thus concluded that the Master's order on assessment of damages still subsisted unless appealed . 1.1.0 On the m orning of 6th September 2016 the defendant, without notice to the plaintiff, put in yet another applica tion for s t a y pending rehearing of the summons to set aside the stay or der on assessment of damages. The application was before Her Honour Kanthambi who cor r ectly observed that, to all intents and purposes, it was similar to the application dismissed by the learned Deputy Registrar Usiwa-usiwa, as he then was, on 5th September 2016 . 1. 11 Rather surprisingly and perh aps having inadvertently failed to notice that my Court was on this very day set to determine whether to grant the plaintiff a garnishee order absolute, Her Honour Kanthambi upon noting the defendant's yet to be heard application to set aside the plaintiffs default judgment, ruled that she was of the view proceeding with execution in the prevailing circumstances was likely to prejudice the interests of justice. She therefore equally declined to stay execution but went further to order that the judgment debt be paid int o court pending a proper determination of the matter on the merits. 1.12 It was immediately after this particular ruling, on 6th September 2016, that the parties herein appeared before me for what I understood to be and dealt with as a hearing of the judgment-creditor's application for the garnishee order nisi to be made absolute. 1.13 When Counsel Mickeus, for the judgment-creditor, argued that the garnishee order nisi be made absolute as adequate fund s were available to honour the judgment debt, Counsel Matumbi , for the judgment-debtor, brought the Court 's attention to th e earlier order made by Her Honour Kanthambi respecting payment of the judgment debt into court. He thus prayed that the garnishee order absolute be in keeping with Her Honour Kanthambi's order. 1.14 Counsel Mickeus countered by contending that the judgment-debtor's application before Her Honour Kant hambi was an abuse of court process and res judicata as it had been brou ght on three occasions and dismissed twice by Deputy Registrar Usiwa-usiwa, as he then was, as well as Her Honour Kanthambi. For good measure , Counsel Mickeus argued that he saw no basis on which Her Honour Kanthambi ordered that the judgment debt be paid into court. 1. 15 After hearing these arguments and, importantly, upon noting the back and forth range of applications that went on in this matter heretofore, I prudently reserved ruling so I could take time to appreciate the exact state of the a pplications and all orders made thereunder . 1.16 Much as I would want to cut to the chase as I do not want to unnecessarily cloud my r easoning (insofar as the instant application is concerned) with an analysis of everything t hat should or should not h ave t aken place in respect of the litany of applications before my fellow Registrars , I deem it important to observe that the manner in which the flurry of applications herein were processed leaves a lot to be desired. Certainly they could have been managed better. 1. 1 7 Be that as it may, a question that I can render swift and emphatic opinion on is the very last application for stay before Her Honour Kanthambi. This application should have been dismissed out of hand for being decidedly an abuse of court process and res judicata. In fact and in law, the Court had no basis to make the order for payment of the judgment debt into court more s o considering that there was an application pending before my Court regarding the very issue of whether or not the money was to be paid to the plaintiff to satisfy the judgment debt. The long and short of it is that, in agreement with the plaintiffs counsel and supported by the foregoing reasons, the impugned order in this regard is hereby set aside . 1.18 I now move on to deal with the central question that requires resolution in this action as identified in the fir st paragraph to this ruling. Without holding the parties in needless suspense, I am inclined to decide in favour of the judgment-debtor and hold that the judgment debt be paid into court until determination of the defendant's application to set aside the plaintiffs default j udgment. My reasons for so holding are as follows. 1.19 To start with, I have vainly cogit ated and ruminated as to why, the assessmen t of damages proceedings having been wisely adjourned sine die on 9th June 2016 , t h e plaintiff inexplicably caused the same to be conducted on 30th July 2016 . In my conscientious view I would have thought that, logically, an assessment of damages in this matter was dependent on whether or not the defendant's application to set aside the plaintiffs default judgment carried the day. For what it is worth, when one glances a t the defence already filed by the defendant, one cannot help to notice that it is quite a formidable defence so much that it has more than a remote chance of succeeding in persuading the Judge to set the plaintiffs default judgment aside . 1.20 Secondly, I respectfully observe that following the assessment of damages proceedings, an order was rend ered at a somewhat breakneck speed in , perhaps predictably, a summary fashion. The order was couched thus : "ORDER ON ASSESSMENT UPON hearing and analyzing evidence on assessment of damages herein AND UPON considering the Skeleton Arguments filed and adopted m support of the assessment, it is this court's view that the sum of MK3,000,000.00 (Three Mi llion Malawi Kwacha) will reasonably compensate the Plaintiff herein. It is therefore ordered that the Defendant do p ay the Plaintiff MK.3 ,000, 0 0 0.00 (Three Million Malawi K wacha) as d amages for inconvenience, embarrassment and trespass to property. The Defendant is ordered to pay the damages herein within the next f ourteen (14) days from the date hereof Costs are for the Plaintiff" (Emp hasis in original). 1.21 Pausing here, and with profound respect, looking a t the terms of this particular order it appears to me that, prima facie, it lacks a judicious and conscient ious attempt to present a sound basis b y which the court arrives at or justifies the global award of MK3,000,000.00 as a ppropriate damages. This order is, in my view, disturbing when one takes into account that there were three distinct heads of damages that called for assessment. In saying this I a cutely recognize that the defendant shirked attending the assessment of damages proceedings so that the court had nothing to consider from the defendant's side. But, in my considered opinion, that did not confer the court carte blanche to render an unreasoned order or to make an award which is incapable of analysis. 1.22 In this context, it is perhaps apposite that I quote in extenso a passage in the case of John Maulidi v. Enock Malindi and Prime Insurance Company Limited2 wherein Kamwambe J had this to say respecting situations where no evidence is forthcoming from the defence: "There is nothing to consider as evidence from the Defendant's side. The court does not argue on behalf of any party. It must play its neutral role so 2 HC (PR) Civil Cause Number 1 773 of 2009 (unreported) that there is no smell or appearance of bias just because one party is not there. However, the interests of the [party who has tendered no evidence][ ..... .] shall be safeguarded. The Plaintiff should prove each and every averment he makes on a balance of probabilities. The court should convince itself that this position is reached. It is not automatic that Plaintiff has the day, just like that, just because the other p arty has tendered no evidence, [ .. .. ...... .... .. ]. The court should closely consider and scrutinise Plaintiffs evidence in case there are some material contradictions. There could also be material omissions". 1.23 An exact situation obtains in the present matter since there was nothing to consider as evidence from the defendant's side on assessment of damages. Consequently, on the authority of the aforecited case of John Maulidi v. Enock Malindi and Prime Insurance Company Limited3 it seems to me that prudence and indeed for justice not only to be done but to be seen to be done, it was incumbent on the court to make an attempt, however minimal, to presen t its reasoning clearly and lay bare the foundation for its order. It is also fair to surmis e that such reasoning would have enriched our jurispru d ence in m a tters relating to assessment of damages for inconvenience , embarrassment and trespass to property. 1.24 In these circumstances , my considered judgment is that if the order on assessmen t of damages was to be appealed against, it is most likely that the Supreme Court of Appeal where appeals regarding assessment of damages made by Registrars lie would, at best, interfere with the order by reducing the global amount of damages awarded, or at worst, tamper with the order wholesomely by setting it aside. This ineluctably means that it would not serve the interests of justice if the plaintiff was to be paid the judgment debt now when there is a very high probability that either the default judgment could be set aside by the Judge or that the order of assessment of damages could be qu ashed or the omnibus award decreased by the Supreme Court on appeal. 1.25 The fore going are the reasons grounding m y decision in favour of the judgment -debtor. In summary and in the interest of clarity, this Court orders that the judgment debt be paid into court pending determinat ion of 3 Ibid. the defendant's application to set aside the plaintiffs default judgment which application is to come before the Judge . 1.26 As to cos t s, I am aware that the law leaves these in the discretion of the Court but usually costs follow the event. In this case I bear in mind that the event is that the plaintiff has succeeded in certain respects whilst the defendant has been triumphant on the most important point. In the premises, I order each party to bear own costs. Order accordingly. DELIVERED IN CHAMBERS AT CHICHIRI, BLANTYRE THIS 2nd DAY OF FEBRUARY,2017 a yi ba ASSISTANT REGISTRAR 8