NBS Bank Limited v Capital Oil Industries Limited and Another (MSCA Civil Appeal 43 of 2016) [2017] MWSC 11 (21 September 2017)

REPUBLIC OF MALAWI IN THE SUPREME COURT OF APPEAL SITTING AT BLANTYRE MSCA CIVIL APPEAL NO. 43 OF 2016 BETWEEN NBS BANK LIMITED APPELLANT -AND- CAPITAL OIL INDUSTRIES LIMITED RESPONDENT IPONGA COTTON COMPANY LTD RESPONDENT Coram: HON. JUSTICE MZIKAMANDA SC, JA Chisanga SC Counsel for the Appellant Latif SC / Namsengo Counsel for the Respondent Mrs. Chimtande Recording Officers RULING There is before me an application for enlargement of time within which to appeal made under section 23(2) of the Supreme Court of Appeal Act and under Order lr 4 and Order Ill rule 4 of the Supreme Court of Appeal Rules. That application is opposed. The intended appeal is against a ruling by the Registrar on assessment of interest made on 19% July 2016. This ruling relates to q preliminary objection to the hearing of the application. The preliminary objection notice indicates that this Court does not have jurisdiction to hear an appeal from the Registrar on the assessment of interest. The notice shows the grounds of the objection as being that. |. That following the repeal and amendments of section 29 of the Courts Act by section 7 of the Courts (Amendment) Act, 2016, Order 58(2)(b) of the Rules of the Supreme Court is inapplicable. 2. That in terms of rule 3 of the High Court (Exercise of Jurisdiction of the Registrar) Rules, an appeal from the Registrar on assessment of interest is to be made to a Judge in Chambers and not to this Court. 3. That this Court does not have jurisdiction to hear appeals from the Registrar under Order 58(2)(b) of the Rules of the Supreme Court. The challenge to the preliminary objection is premised on the fact that since the amendment of section 29 and 67 of the Courts Act in September 2016 providing that the hitherto rules of procedure for the High Court were repealed and amended respectively, no rules of procedure have since been promulgated and gazette by the Chief Justice. It is also premised on an argument that the Supreme Court of Appeal, despite the amendments, retains the rules guiding the practice and procedure of Court Appeals in the Court of Appeal in England since section 8 of the Supreme Court of Appeal Act was not amended. Consequently not even Rule 3 of the High Court (Exercise of Jurisdiction of Registrar) Rules would apply in the Supreme Court of Appeal. Section 13 of the General Interpretation Act provides for the continuation of repealed written laws until the substituted provisions come into operation. According to Latif $C, section 7 of the Courts Act (Amendment) Act, 2016 replaced section 29 of the Courts Act and is now in force, providing that the practice and procedure of the High Court shall be provided in the rules of procedure made by the Chief Justice under section 67. Although no rules of procedure have been gazette yet, the Rules of the supreme Court are not part of the rules of procedure. Senior Counsel further argued that since Order 58(2) (1b) of the Rules of the Supreme Court is not applicable and that Rule 3 of the High Court (Exercise of Jurisdiction of the Registrar) Rules provides that any person affected by any decision, order or direction of the Registrar may appeal there from to a Judge at Chambers, it follows that an appeal from the Registrar lies to the Judge in Chambers and not to this Court. The case of Anwar Gani v Chande [2006] MLR 25 was cited in support of this proposition. According to Chisanga SC, the submissions made by Latif SC are agreeable that indeed section 29 of the Courls Act was repealed and that replacement rules of procedure were supposed to have been promulgated the Chief Justice under section 67 of the Courts Act but that has not happened. This then means that generally one cannot commence proceedings in the High Court because the rules are not there yet. According to Chisanga SC that creates a lacuna which must be filled and section 13 of the General Interpretation Act provides some guidance on how to fill the lacuna by saying that when a written law has been repealed, that repealed law shall remain in force until the replacement law takes effect in thal regard then, section 29 of the Courts Act remains operative until the Chief Justice promulgates replacement law and that means that the appellant may appeal to the Supreme Court of Appeal on the Registrar's ruling of assessment of damages. The preliminary objection therefore must be overruled. Senior Counsel cited the case of Joshua Chisa Mbele v Lanjesi and Another MSCA Civil Appeal No. 8 of 2015 and Mpinganiira v Attorney General [1996] MLR 12 in support. Having examined the documentation relevant to the preliminary objection, the arguments advanced by both Senior Counsel and the case cifed | am in no doubt that the issue before me is narrower then Senior Counsel would like this Court to consider. It is whether Order 98(2)(b) of the Rules of the Supreme Court which applied in Malawi by virtue of the provisions of section 29 of the Courts Act continues to apply even after section 29 of the Courts Act was repealed. Section 7 of the Courts (Amendment) Act, 20164 replaced section 29 of the Courts Act. Section 7 requires that the Chief Justice promulgates procedure rules for the High Court under the authority of section 67 of the Courts Act. Such rules have not yet been promulgated even at the time of this ruling. Needless to say, that position is most unsatisfactory. Both parties agree that there is a lacuna in the regard and as it is well known, the law abhors vacuum. The parties here differ on how the lacuna should be closed and allow legal processes to go on even as the rules to be promulgated by the Chief Justice are yet to come. At this point my focus will narrow further to rules governing appeals against orders by the Registrar. According to Rule 3 made under section 8 of the Courts Act respecting High Court (Exercise of Jurisdiction of Registrar) Rules, any person affected by any decision order or direction of the Registrar may appeal therefrom to a Judge at Chambers. Order 58 of the RSC which applied in Malawi by virtue of the repealed section 29 of the Courts Act made a distinction between decision of the Registrar that were appediable to a Judge at Chambers and those that were appeaiable to the Court of Appeal. Specifically, according to Order 58 r 2(b), an order of assessment of damages by the Registrar was appeaiable to the Court of Appeal directly, in our case it was appediable to the Supreme Court of Appeal directly. According Law Revision Order 1/2010 the last time section 8 of Courts Act was amended to its presented form was in 1984 as Act No. 8 of 1984 and the tule itself had become operative by virtue of Government Notice No. 189 of 1975. | have taken cognisance that the question before me was also dealt with in the previous Supreme Court of Appeal decisions of Banda v Chunga [1990] 13 MLR 53 and Anwar A Ganiv M ¥ Chande [2006] MLR 25 with different results. More recently a single member of this Court had occasion to deal with a similar question in Joshua Chisa Mbele v Lanjesi and Another MSCA Civil Appeal Cause No. 8 of 2015 and concluded that the Rules of the Supreme Court applied in this country effectively upholding the position in Banda v Changa but without specifically mentioning the contrary position in Anwar A Gani v MY Chande. The three decisions were made before the amendmen} of the Courts Act in 2016 repealing section 29 of that Act on the basis of which Order 58 of the Rules of the Supreme Court applied in this country. The parties in the present matter agree that the repealing of section 29 of the Courts Act was intended to be followed immediately by the promulgation of the rules of court procedure by the Chief Justice. No new rules of procedure have been promulgated at the time of writing this ruling. The parties seem to agree that the delay in promulgating new rules of court procedure has created a vacuum. What the parties do not seem to agree on is how to fill that vacuum, bearing in mind that the law abhors a vacuum. Senior Counsel Chisanga made a very forceful argument that in terms of section 13 of the General Interpretation Act, the law must remain as it was immediately before the repealing registration until such time as the Chief Justice promulgates the new rules of court procedure. Section 13 of the General Interpretation Act provides that: “Where a written law repeals wholly or partially any former written law and _ substitutes provisions for the written law repedied, the repealed written law shall remain in force until the substituted provisions come into operation”. Senior Counsel Latif argued that it is unnecessary to make reference to section 13 of the General Interpretation Act as there is a fallback position in the law which shows that appeals against the Registrar's assessment of interest or damages must be to a Judge at Chambers as is stioulated in Rule 3 of the High Court (Exercise of Jurisdiction of Registrar] Rules made under section 8 of the Courts Act. Section 8 of the Courts Act was never repealed. Senior Counsel Latif seems to argue that even if section 13 of the General Interpretation Act were to be resorted to and the position immediately before the repealing legislation were to be relied upon the case of Anwar Gani v Chande would apply as being the more authoritative case than the cases of Banda v Chunga and Joshua Chisa Mbele v Lanjesi and Another, the earlier having been made per in curium and the latter having been made by a simple member of this Court. The case of Anwar Gani v Chande decided that Rule 3 of the High Court (Exercise of Jurisdiction of Registrar) Rules made under section 8 of the Courts Act revoked the provisions of Order 58 rule 2 of the Rules of the Supreme Court in so far as it regulates appeals to the Court of Appeal on assessment of damages. |am grateful for the forceful arguments by both Counsel. The repeal of section 29 of the Courts Act by virtue of which Order 58 rule 2(b) of the Rules of the Supreme Court applied in this country in relation to appeals against awards of the assessment of damages made by the Registrar may have created q vacuum as the promulgation of rules of court procedure by the Chief Justice was yet to be done. As earlier pointed out the law abhors vacuum. It is for that reason that section 13 of the General Interpretation Act provides for the continued application of the repealed law until replacement law comes into effect. The forceful argument by Latif SC that Rule 3 of the High Court (Exercise of Jurisdiction of Registrar) Rules in the Courts Act must fill the vacuum created by the repealing of section 29 of the Courts Act fails to persuade this Court on a number of grounds. First the distinction between decisions, orders or direction of the Registrar and awards on assessment of damages by the Registrar applicable by virtue of section 29 of the Courts Act cannot be abolished by mere reference to Rule 3 of the High Court (Exercise of Jurisdiction of Registrar) Rules of the Courts Act. The distinction had remarried in existence even at the time the said Rule 3 was promulgated. It is clear that the said rule made reference only to “decision, order or direction of the Registrar” without specifically making reference to assessment of damages by the Registrar. This must have been intentional so as to retain the distinction between appeals that may lie from the Registrar to a judge at chambers and those that may lie from the Registrar directly to the Supreme Court of Appeal. Secondly, the reliance on the dictum of Kalaile JA in Gani _v Chande that Rule 3 of the High Court (Exercise of the Jurisdiction of the Registrar) Rules became operative by virtue of Government Notice No. 189 of 1975 well after Order 58, Rule 2 of the Rules of the Supreme Court and that it revoked the provisions of Order 58 rule 2 in so far as it regulates appeals to the Court of Appeal On assessment of damages finds no support anywhere else beyond the case of Gani v Chande itself. The rule never expressly stated that it was revoking the aspect of appeals on assessment of damages from the Registrar to the Supreme Court of Appeal. If the intention was so to revoke, then the rule should have expressly stated that intention. There is nothing to indicate such an intention. No reference was specifically made to either section 29 of the Courts Act or Order 58 rule 2 of the Rules of the Supreme Court at the time Rule 3 of High Court (Exercise of the Jurisdiction of the Registrar Rules was promulgated. Thirdly, the issue of reliance on Rule 3 of the High Court (Exercise of the Jurisdiction of the Registrar) Rules in relation to the Registrar’s award was more recently dealt with at great length in Elizabeth Moto v Ismail Salabadia MSCA Court Appeal No. 2 of 2014 by a full panel of this Court which Unanimously overruled the Gani v Chande. The reasoning in that case was consistent in large measure with that in Banda and another v Chunga: Mpinganjira v Attorney General and Nasiyaya v Attorney General — that Rule 3 of the time High Court (Exercise of the Jurisdiction of the Registrar) Rules does not affect appeals from the Registrar on assessment of damages directly to the Supreme Court of Appeal. Mwaungulu SC JA writing the Unanimous opinion stated at page 8 of the script that: “One view, finding expression in Gani V Chande has been that this rule encompasses all decisions and orders from Registrars including those on assessment of damages. This interpretation leads to conceptual and jurisdictional conundrums. The other view finding expression in Banda and another v Chunga, Mpinganijira v Attorney General, and Nasiyaya v Attorney General suggests that the rule does not include judgments where the Registrar assessed damages. The latter view premises on specific provisions in the Rules of the Supreme Court, 1965, which are the rulers of Court applicable then and now, replaced by the Civil Procedure Rules 1998. The Civil Procedure Rules 1998 themselves retain the original position and, therefore, even if after the Civil Procedure Rule 1998, in England, judgments on assessment of damages lie for appeal to the Court of Appeal. The question therefore is whether Rule 3 of the High Court (Exercise of the Jurisdiction of the Registrar) Rules changed this position. [After some detailed analysis His Lordship went on to say at page 25.] Judgments on assessment of damages are judgments in their own right and, therefore, amendable to appedi to the Supreme Court, not to a judge in Chambers. The matter was succinctly summoned up in the introductory part of Mwaungulu SC JA that: “lf they are anything to go by, this Court's decision crystallize into a practice the correct one, that appeals from judgments on assessment of damages, whether by Registrars with or without an order of q judge or by a judge or the High Court, lie to this Court, not to a judge of the High Court. In this respect therefore, this Court approves its earlier decisions in Banda and another v Chunga [1990] 13 MLR 53 and Mpinganjira v Attorney General [1990] MLR 11 nad like in Naziyaya v Attorney General, over rules this courts decision in Gani v Chande (2003 Civil Appeal No. 6 (MSCA), [2006] mir 25 ... The law as | understand it is that judgments, including judgments on assessment of damages are appealable to the supreme Court of Appeal, not to the High Court or a judge of the High Court en banc or in Chambers. The word judgment, in this statement is used advisably. It seems at least to me, that confusion would be avoided by understanding that award, on assessment of damages are, stricti sensu, judgments and not necessarily orders decisions, decrees determinations, direction or rulings.” Now whether one is an advocate of the application in these courts of Rules of the Supreme Court 1999 or the Civil Procedure Rule 1998 for England and Wales one arrives at the inevitable conclusion that the distinction between the Registrars decisions, orders or direction and the Registrar's awards of assessment of damages remains applicable in this country and Rules 3 of the High Court (Exercise of the Jurisdiction of the Registrar) Rules under the Courts Act does nothing to alter that position. For the reasons given above the preliminary objection to the original application herein cannot stand and must fail. Accordingly, it is dismissed with costs. Made in Chambers this 21s! day of September 2017 at Blantyre. fh eee fff R. R. Oo Sc JUSTICE OF APPEAL 10