Nsona v Lujeri Tea Estate Ltd. (Personal Injury 57 of 2015) [2018] MWHC 53 (8 June 2018)

The Ju d iciary IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY PERSONAL INJURY CAUSE NUMBER 857 OF 2015 PETER NSONA.................................................................................... CLAIMANT BETWEEN LUJERI TEA ESTATE LIMITED............................................. DEFENDANT AND CORAM: A. J. BANDA, ASSISTANT REGISTRAR Mr. T. Mwaungulu, o f counsel, for the Claimant Mr. Ulaya, o f counsel, for the Defendant M/s. D. Nkangala, Clerk Banda, AR Background RULING This is an application by the defendant for stay o f enforcement o f an assessment order dated 24th May, 2018 requiring the defendant to pay the claimant the sum o f K19, 250, 000.00, pending the hearing and determination o f an appeal being pursued by the defendant in the Malawi Supreme Court o f Appeal. The defendant is dissatisfied with the decision o f Honourable Justice D. T. K. Madise in the judgment after trial, in which he was found liable at the degree o f 70% to the claimants claim for damages for personal injury. The judgm ent was 1 of 4 | Peter Nsona v. Lujeri Tea Estate Limited Pi Cause No. 857 of 2015 <RULING> A J. Banda, AR delivered on the 19th day o f February, 2018. The defendant’s present application is supported by a sworn statement deponed by Francisco Chikabvumba, o f counsel. It is opposed by the claimant. The claimant did not file any sworn statement but filed submissions in opposition. Facts The facts as contained in the sworn statement o f Mr. Francisco Chikabvumba are not in dispute. He deponed that an appeal has already been lodged with the Malawi Supreme Court o f Appeal and that the appeal is not a sham that is merely intended to deprive the claimant the Suits o f litigation, but is genuine and has high likelihood o f success. The defendant believes that the claimant would not be able to pay back the sum o f K19, 250,000.00 as seen from the facts that the defendant used to earn K850.00 per day, and that he is now out o f employment and has lost earning capacity as a result o f the accident. The claimant states therefore that should the defendant’s appeal succeed, in the Supreme Court, the appeal would be rendered nugatory and the defendant would suffer irreparable loss. The defendant therefore argues that the balance o f justice requires that the order on assessment o f damages be stayed pending the determination o f the appeal by the Supreme Court o f Appeal. Issue The court has to determine whether it should stay the enforcement o f the assessment order pending the defendant’s appeal to the Malawi Supreme Court o f Appeal. Analysis of L aw and Fact The defendant and the claimant agree on the principles that are applicable in applications like this one. The two parties also agree that whether this application is granted or not, is at the discretion o f the court. It is a fact o f law that discretion must be exercised judiciously. This entails that set principles must be followed. In an application like this one, the court must be mindful that it should not deprive a successful litigant the fruits o f his litigation pending an appeal- A. R. O sm an an d Co. v. N yirenda [1995] 1 M LR 13 (M SCA); C ity o f B lantyre v. M anda [1992] 15 M L R 114 (HC). There must be unusual circumstances that should compel the court to stay execution o f an order. The burden is on the applicant, the one who wants the order stayed that must show the court the unusual circumstances in the case. The defendant informs the court that the unusual circumstances are that the claimant will not be able to pay the money in the case that the appeal succeeds. It is my view that it would indeed be difficult for a person who is out o f employment to pay back K19, 250,000.00. It is the case with the claimant in this case. Both parties further agree that in cases like this one, the applicant should not be the one responsible for the predicament the successful litigant finds him self in, that he cannot pay back the money in the case that the appeal succeeds- Stam buli v. A dm arc 2 of 4 | Peter Nsona v. Lujeri Tea Estate Limited PI Cause No. 857 of 2015 <RULING> A. J. Banda, AR Civil Cause No. 550 of 1991 High Court, Principal Registry (unreported). The claimant believes that is the case in this instant case, as the claimant is out o f employment and cannot earn as he had his arm amputated because o f the negligence o f the defendant held to be at 70% by the honorable Judge. The defendant thinks not. It is my view that the defendant, as the judgment o f the court now stands, has played a part in the loss o f earning. However, the part is minimal, as regards to the contribution o f the defendant in making the claimant unable to repay the damages. As rightly argued by the defendant’s counsel, the claimant was not in a position to repay a lump sum o f K19, 250, 000.00 even before the accident, given his daily earning o f K850.00. The claimant however, brings in another dimension to his argument in opposition to the application, which is basic and fundamental. He stated that this is a case where the appeal by the defendant is on the judgment on liability as held by the honorable Judge, and not on the quantum o f damages as determined by the Assistant Registrar. He submits that the Assistant Registrar conducted the assessment o f damages in a delegated capacity, and as such the stay should have been obtained before the judge stating that the registrar has no jurisdiction as such to determine the application. The defendant counsel states that the registrar has got jurisdiction to hear such an appeal. He states that the fact that the registrar assessed the damages does not make the decision any lesser than that o f the High Court judge. He cites the case o f Chidzankufa v. Nedbank [2008] MLR Commercial Court Series. I understand that under Order 25(1) o f the Courts (High Court) (Civil Procedure) Rules, 2017 (CPR), the registrar’s jurisdiction is a delegated one. Under the same order though the registrar has powers to handle cases o f enforcement also o f the registrar’s own orders and under the Court’s direction, the Court’s judgments and orders too. I join the defendant’s counsel in his view that the order on assessment is not made any lesser the decision o f the High Court simply because it is by the registrar under delegated powers o f the Judge. However, that is not the claimant’s point. The claimant states that staying the assessment order when the appeal does not lie against the order on assessment but judgement on liability, like the case in this matter, amounts to staying the judgment o f the High Court Judge. The order on assessment is ordinarily a subset o f the judgment on liability. An appeal o f the decision o f this court, which is o f right, can lie on either the finding o f liability or the quantum on assessment, or indeed both, as it is o f right. It would be ideal in cases like this one, if an application is brought early, to stay the assessment o f damages hearing. Such an application would be before the judge that heard the matter on liability, pursuant to the initial directions, or before a registrar if the judge so directs under Order 25 o f the CPR. With this instant matter, an assessment hearing already took place. In a case like this one, it would be an academic exercise to proceed with the appeal without staying enforcement o f the assessment order, when the claimant cannot repay the damages if the appeal is successful. The order on assessment was made by the registrar, pursuant to the Court’s direction. The registrar should therefore have jurisdiction to stay this order as a result o f the direction given to assess damages as part o f the judgment, and o f course, as the registrar’s own order under O. 25 CPR. The claimant is only 3 of 4 | Peter Nsona v. Lujeri Tea Estate Limited PI Cause No. 857 of 2015 <RULING> A J. Banda, AR prejudiced in incurring costs which he would otherwise have not incurred if this assessment hearing was stayed pending the appeal, that is to say where the appeal will be successful. Thankfully, the costs were already ordered for the claimant in the assessment order. Conclusion It is my finding in this case that the defendant’s appeal would indeed be rendered nugatory if the enforcement o f the damages is not stayed, as the claimant will be unable to repay the damages if the appeal succeeds. The court would not want to let the claimant who succeeded in this court to be at the mercy o f the defendant, in the event that the appeal is not heard in good time for the defendant’s own indolence. I will therefore order a stay o f the execution o f this assessment order, with the following conditions; in attempting to facilitate diligence on the part o f the defendant, but without taking away the claimants rights o f action in this court or in the court above should there be indolence on the part o f the defendant in prosecuting the appeal; a. The defendant to deposit the sum o f K 19,250,000.00 with the court which shall deposit the same in an investment account that would earn interest to maintain value o f the money, within 7 days o f this order; proof o f the deposition to be served on the claimant. Failure to abide by this condition will entitle the claimant to enforce the assessment order. b. The deposited money to remain in the account, until a further order by this court, upon any appropriate interpartes application by either party, or until the determination o f the appeal by the Supreme Court o f Appeal, whichever is sooner. c. The claimant is at liberty to enforce the payment o f costs o f the assessment hearing, if agreed, or after they are assessed. If they are not yet assessed, he is at liberty to seek the appointment with the registrar for assessment o f those costs. Lastly, each party will pay own costs o f this application. Made this 8th day o f June, 2018 Austin Jesse Banda ASSISTANT REGISTRAR 4 of 4 | Peter Nsona v. Lujeri Tea Estate Limited PI Cause No. 857 of 2015 <RULING> A J. Banda, AR