Mwamlowe and Another v Rumphi District Council and 2 Others (Miscellaneous Civil Cause 8 of 2015) [2020] MWHCCiv 50 (5 March 2020)

a NI Ce ARE BoM IN THE HIGH COURT OF MALAWI MZUZU DISTRICT REGISTRY MISCELLANEOUS CIVIL CAUSE NO. 8 OF 2015 FANWELL MWAMLOWE. ....... oc cccccccececccecseeesesaeeeseeseeeueececcccccccc. 1S? APPLICANT EDGAR MWAMLOWE ....00......ccccccccceeceseceeeeeceeueueseeceeeeeseeeecccccc 2NP APPLICANT AND RUMPHI DISTRICT COUNCIL (D. C. RUMPHD) 0. c.occcccecccccccceeeececcen. 18 RESPONDENT PARAMOUNT CHIEF CHIKULAMAYEMBB ...........cccccececee0000000.5. 2NP RESPONDENT MABVUTO KACHIPAPA MWAMLOWE ...000.....-0occcccceeeccceeeeceecc. 38D RESPONDENT CORAM: Honourable Justice T. R. Ligowe G. Kadzipatike, Counsel for the Applicant V. Gondwe and W. Chibwe Jr., Counsel for the 3" Respondent F. Luwe, Court Clerk R. Luhanga, Recording Officer and Court Reporter RULING Ligowe J, 1 The applicants brought an originating summons on 1° February 2016, seeking several declaratory orders regarding the succession of T/A Mwamlowe upon the District Commissioner for Rumphi accepting Mabvuto Kachipapa Mwamlowe to act as T/A Mwamilowe after the death of the T/A around August 2014. Their main argument is that the royal clan has three families from which a successor could be appointed, Chinkhuwile family, Njokofwano family and Kachipapa family. Customarily, the families sit down together to choose a successor among them, but around August 2014, the Kachipapa family unilaterally presented Mabvuto Kachipapa Mwamlowe as acting and possible successor to the T/A. 2 On 17" November 2016, the Honourable Justice Madise made an order in the following terms. “Upon hearing counsel and upon noticing that in the chieftaincy of traditional Authority Mwamlowe, there are three families namely the Kachipapa family, the Chinkhuwile family and the Njokofwano family, And upon noticing that the Chief who died recently came from the Kachipapa family, and that the Chief succeeded the Chief who came from Chinkhuwile family, It is ordered that this time, the rightful successor to the throne of traditional Authority Mwamlowe must come from Njokofwano family. It is further ordered that: 1. The District Commissioner for Rumphi must communicate to the Paramount Chief Chikulamayembe within 7 days about this decision of the court. 2. The Njokofwano family must submit a name of the successor to the throne of Traditional Authority Mwamlowe to the District Commissioner for Rumphi within 14 days from the date hereof, and the successor shall be appointed in accordance with customary law obtaining in the area. 3. The successor to the throne of Traditional Authority Mwamlowe shall be installed within 28 days from the date hereof.” 3 There is on record a notice and grounds of appeal against the decision of 17" November 2016 filed and dated 24'" November 2016. 4 On 23" January 2017, the Honourable Justice Madise made another order ex parte staying execution of the judgment of 17" November 2016 pending appeal and ordering that the notice of appeal should be filed within seven days and the grounds, within 14 days. 5 The applicants brought an application on 1° June 2018 to discharge the order of stay of 23 January 2017, which I heard on 17" October 2018. Here is the ruling for that application. The applicants’ application is supported by a sworn statement of Counsel George Jivason Kadzipatike that the Honourable Justice Madise made the judgment of 17" November 2017 in chambers and upon consent of all the parties. The judge had asked Counsel Kadzipatike to draft the order which Counsel Wesley Mwafulirwa, then of Messrs John Tennyson and Associates for the respondents had to approve before the Judge signed. Counsel for the applicants argues that the judgment having been made in chambers, it cannot be appealed from without leave of the Supreme Court of Appeal or the High Court in accordance with proviso (c) under section 21 of the Supreme Court of Appeal Act. The proviso says that no appeal shall lie without the leave of a member of the Supreme Court of Appeal or of the High Court or of the judge who made or gave the judgment in question where the judgment is an order made in chambers by a judge of the High Court. Counsel cited a few cases including The State and 5 others; Ex parte Dr Cassim Chilumpha, [2006] MLR 433 and the dissenting opinion in Mulli Brothers Lid v. Malawi Savings Bank, MSCA Civil Appeal No. 48 of 2014 [2015] MWSC 476 (16% July 2015) (unreported) in support of his argument. No leave having been obtained, counsel argues, there cannot be an appeal, and therefore, no stay of execution pending appeal. Counsel further argues that the notice of appeal filed on 24" November 2016 is void for having been filed before leave was obtained. Counsel for the respondents has raised four arguments in opposition. The first is that the judgment in question does not disclose that it was made in chambers. Even the record of the proceedings on the file does not disclose at all whether the matter was heard in chambers. The second is that, suppose the judgment was made in chambers, when the court gave directions in the order of stay of execution, as to how the 34 respondent would file the appeal, it in effect granted leave to appeal. The third is that on 5" July 2017, the applicants participated in the hearing for settlement of the record of appeal and did not raise any objection that there was no appeal. They cannot turn around now. And, the fourth is that the proviso to Order III rule 3 (2) of the Supreme Court of Appeal Rules allows filing of a notice of appeal prior to the hearing of the application for leave to appeal. 10 {1 In response to the respondents’ arguments, Counsel for the applicants argues that section 23 (1) (b) of the Supreme Court of Appeal Act allows six weeks within which to file a notice of appeal against a judgment of the High Court. After the six weeks, the time can only be extended by the Supreme Court of Appeal under subsection (2). The High Court cannot be deemed to have given leave to appeal long after the six weeks in this case, as it has no jurisdiction to grant extension of time within which to appeal. Whether the judgment was made in chambers It is difficult to tell from the order itself or the record of proceedings on file whether it was made in chambers or not. It is unfortunate that the present application was made after the Honourable Justice Madise transferred to the Principal Registry in Blantyre, otherwise he should have dealt with this issue with a lot of ease. That notwithstanding, the clear rule under section 60 of the Courts Act is that every court has to exercise its Jurisdiction, powers and authorities in open court, except as otherwise provided for by any other law for the time being in force. The court however, has power to hear any matter or proceeding or any part thereof in camera if, in the opinion of the presiding Judge or Magistrate it is expedient in the interest of justice or propriety or for other sufficient reason to do so. Where the court exercises its power to hear any matter or proceeding or any part thereof in camera which according to law should have been heard in open court, I think the decision made should still be deemed as made in open court and therefore not subject to the requirement for leave before appeal. This case was begun by originating summons. Under the Rules of the Supreme Court, which were the rules of practice in the High Court at the time, proceedings could be begun by originating summons if it were an application to the High Court or to a Judge thereof under any Act, (Order 5, rule 3 RSC.); or it were proceedings in which the sole or principal question at issue was or was likely to be, one of the construction of an Act or of any instrument made under an Act, or of any deed, will, contract or other document, or some other question of law; or it were proceedings in which there was unlikely to be any substantial dispute of fact. (Order 5, rule 4, RSC). le 13 14 15 A reading of Order 28 of the Rules of the Supreme Court, shows that there were three types of originating summonses. The general form of originating summons in Form No. 8 in Appendix A; the expedited form of originating summons in Form No. 10: and the ex parte originating summons in Form No. 11. Order 28, rules 1A, 4 and 8 show that an originating summons would ordinarily be decided on affidavit evidence. Forms No. 10 and 12 read together with Order 28, rule 9 show that every originating summons would first be heard in chambers and only go for trial if the court had not disposed of the matter in chambers and had not transferred it to some other court, or ordered it to continue as though it had begun by writ. Under Order 28, rule 9 (1) the court had, on being satisfied that the cause or matter is ready for determination, to make such order as to the hearing of the cause or matter as would be appropriate, fixing the period within which the plaintiff had to lodge documents and determining the place and mode of trial. The record of proceedings in the present case, from beginning to the judgment of 17" November 2016, does not show that the case reached that far. | am comfortable therefore, to hold that the order was made in chambers. It thus follows that it required leave of the Supreme Court of Appeal or of the High Court to be appealed from. Whether the order of stay of 23"¢ January 2017 should be deemed as having granted leave Order HI, rule 3 (1) of the Supreme Court of Appeal Rules provides that such leave shall be made ex parte by notice of motion. That sort of application was not made in the present case, but a notice of appeal was filed followed by an application for stay of execution which my brother granted. In The State and 5 others; Ex parte Dr Cassim Chilumpha, [2006] MLR 433 the Supreme Court of Appeal held that where leave to appeal under section 21 of the Supreme Court of Appeal Act had not be obtained, no appeal could lie to the Supreme Court of Appeal and the purported appeal was without legal effect. In relying on Mulli Brothers Ltd v. Malawi Savings Bank, MSCA Civil Appeal No. 48 of 2014 [2015] MWSC 476 (16" July 2015) 16 (unreported) Counsel quote a paragraph of the dissenting opinion of Honourable Justice of Appeal Mwaungulu that: “In the first place, since there was a compromise, this Court has no jurisdiction, because of section 21 of the Supreme Court of Appeal Act, to entertain the appeal, where leave of this court or the court below was not sought. Secondly, the judgment appealed from cannot be the one that the Judge of the court below delivered. The judgment pervading is the compromise. The appellant, therefore, could not appeal against the judgment appealed from. On the judgment by consent, leave of the court below was needed and the matter goes to jurisdiction. There cannot, therefore, be an application for stay of execution of a judgment pending an appeal that never was. Assuming that there was such a judgment, on principles espoused recently in this court and the court below, on balance of justice, there should be stay of execution pending appeal, if any, on condition that until the judgment of this court, if it comes to that, the appellant should pay by instalments under the agreement.” It is the meaning of the highlighted sentence above that I have problems with. Counsel for the applicants’ view is that it means that where leave is required before appeal and the same has not been obtained, there cannot be an appeal, and therefore, no stay of execution pending appeal. In the context of the Justice of Appeal’s opinion, that would be one meaning. The other meaning would be, there was no appeal because the High court in that case should not have delivered the judgment when the parties had informed it that they had reached a compromise. The judgment that had effect on the parties and which should have been appealed was the compromise. That the appeal was made on the judgment delivered by the Judge, there was no appeal. In any event he meant that there would be no stay of execution pending appeal if there was no appeal. However, at the end, his opinion was to stay execution on condition that the appellant “must pay the monthly interest on the judgment sum up to the conclusion of the appeal.” This is confusing, as it does not follow from the premise that there was no appeal in the first place. Luckily it is a dissenting opinion and this court is bound by the majority opinion instead. Id 18 19 20 It still stands from The State and 5 others; Ex parte Dr Cassim Chilumpha, [2006] MLR 433 that, where leave to appeal under section 21 of the Supreme Court of Appeal Act has not been obtained, no appeal can lie to the Supreme Court of Appeal, and any purported appeal has no legal effect. The full panel of the Supreme Court of Appeal in that case set aside an order staying execution of a decision of the High Court made by a single Justice of Appeal for three reasons. (a) The application for stay of execution was made before the single Justice of Appeal before it had been made and refused before the High Court which made the order which was contrary to Order 59/9/4 of the Rules of the Supreme Court. (b) The proper course of action where an application to vacate an injunction had been dismissed by the High Court, as had happened in that case, was to appeal to the Supreme Court and not to bring a further application for a stay. (c) Leave of the High Court had not been sought under section 21 of the Supreme Court of Appeal Act. The Supreme Court of Appeal stated in considering the third point that it was connected to the order of stay, but did not explain how. I am not sure what decision the court would have made had the first and the third point been complied with. My view is that allowing an application for stay pending appeal of an order that requires leave of the Supreme Court of Appeal or the High Court is in effect granting that leave. So, the order of 23" January 2017 in the present case, effectively granted the respondents leave to appeal. Could leave to appeal be granted out of the time limited to appeal? Section 23 (1) of the Supreme Court of Appeal Act and Order I, rule 3 of the Supreme Court of Appeal Rules can help resolve this question. Section 23 (1) provides: - (1) If a person desires to appeal under this Part from the High Court to the Court, he shall, in such manner as may be prescribed by rules of court, give notice to the Registrar of the High Court of his intention to appeal — 21 22 23 24 ae (a) within 14 days of the judgment from which he wishes to appeal if such judgment is an interlocutory order; (b) within six weeks of the judgment from which he wishes to appeal in any other case. It is important to note that it is the notice of appeal that has limited time in section 23. Order III, rule 3 provides: - (1) Where an appeal lies only by leave of the Court or the Court below, any application to the Court for such leave shall be made ex parte by notice of motion. (2) If leave to appeal is granted by the Court or by the Court below the appellant shall file a notice of appeal: Provided that nothing in this sub rule shall be deemed to prohibit an appellant from filing a notice of appeal prior to the hearing of the application for leave to appeal. There you go, a notice of appeal can be filed prior to the hearing of the application for leave to appeal. The notice of appeal in this case was filed prior to the date leave is deemed to have been granted and that was perfectly within time. It therefore did not matter at what point leave to appeal would be granted. I therefore see no reason to discharge the order of stay of execution the Honourable Justice Madise made on 23" January 2017. The applicants’ application is dismissed with costs. Made in chambers this 5" day of March 2020.