Chibuko v Maloya (Civil Appeal 18 of 2016) [2017] MWHCCiv 7 (24 April 2017)

... _··----..-.., /\u,tin Moloyo v Nyombosi Chibuko Civil Appeal Couse No 18 of 2016 ~ ............ . b ..... ~~~~ .. ~tGH cnun_;· IN THE HIGH COURT OF MALAWI MZUZU REGISTRY: CIVIL DIVISION Civil Appeal Cause No 18 of 2016 (l]ralng Civil Cause No 88 of 2016 in the First Grade Magistrate Court Sitting at Mzuzu) Between Nyi r [Josi Chibuko .. ... ............... .. ...... ..... ..... . ... .... ..... ...... ...... ... Appe llant -and- t,u~tln fv1aloya ......... .. .... .. .... .. . .... .. .. ...... . ... .......... .. ...... ... .... ... .. Respondent '~'!;a,i,!,lt~tfe.-- - - - - - - - - -- - -- - - -- - - - - - - - - - - ~ ~ GOfilM: lJ.~,:-··:'. ~ RABLE JUSTICE D. A. DEGABRIELE r\i'1f l~!\UW nd i o u ke 11uMli1 Matoya M! , A( Jjpnyinji --· .·: · ,-:;,,:, for the Applicant absent, no cause but duly served Official Interpreter ii'.\\"~-'J;:,l~- - - - - - - - - - - - - - - - - - - - - - - - - - ::~: ·. , JUDGEMENT I 1ttr\itf t1cti On rn@-O))pe llant he rein is appealing against th e decision of First Grade Mag istrate /20ll(t ~llling at Mzuzu . The decision , where the lower court awarded the sum of Ml\111'))00.00 to th e respondent plus costs of action , was made on 17th ij@HI~n11)Cr 2016 . - ,-,,. - - Austin fvlu/oya v Nyombosi Ci:ibuiw Civil Appeal Couse No 18 oj 2016 ; I , ~ I The court record has no outline of the facts . The brief facts presented herein are from the appellant's application in this Court. Briefly the appellant had engaged the respondent to produce tobacco on a contract and the payment for the service would be based on the harvested and graded tobacco . The respondent farmed and harvested MK714 kilograms of tobacco but did not grade the same. The appellant then graded the tobacco and produce 302 Kilograms. The respondent then filed a civil suit against the appellant claiming MK117,00.00 on the basis of 714 kilograms which was obtained before grading of the said tobacco and contrary to the agreement. The lower Court ordered that the appellant pay the sum of K117,000 .00 before it gave the defendant a chance to prese nt his case and evidence. Grounds of appeal The appellant is appealing on the following grounds , that 1. The Magistrate erred in law by not allowing the appellant to enter his defence depriving the appellant the right to defend or respond to allegations in a court of law below. 2. The Magistrate erred in law by ordering the appellant to pay K1 17 ,000.00 the amount clai med by the respondent w ithout merit. 3. The Court erred in admitting the amount of K16,000 .00 per bale alleged by the respondent without establish ing the quality grade of tobacco supplied by the responde nt to the applicant and including sales regulations provided by TAMA. 4. In all circumstances of the case the Magistrate erred in entering judgment for the respondent. Issues for Determination in this Court The Court is called upon to determine whether in these circumstances the appeal - can succeed . - Austin Malaya v Nyombosi Chibuko Civil Appeal Couse No 18 of 2016 The lower court record I have looked at the court record. The whole court record can be summed as follows; "In the First Grade Magistrate Court 1 Sitting at Mzuzu Civil case no 88 of 2016 Between 41,~ V' AUSTINE MALOYA ........................... ............ .................. ... Plaintiff And Nyambosi Chibuko ................................................ Defendant Coram: HIW S. M. G. Chimaliro, First Grade Magistrate M. Nyirongo, official interpreter Plaintiff present Defendant, present Claim: Demand of 117,000.00 Defendant: I understand the C!airn and admit the plaintiff cultivated my tobacco but did not process it. But we have processed it now. Order: The defendant should pay the sum of K117, OOO. 00 plus costs imm ediately so that the plaintiff should go b ack home. Dated this 1 ?fh day of September 2016 at Mzuzu - S. M. G. Chimaliro FIRST GRADE MAGISTRATE" - Austin Malaya v Nyombosi Chibuko Civil Appeal Couse No 18 of 2016 It is not clear from the record whether the defendant, having partly admitted liability was allowed to explain. The order itself is not clearly explained as the costs ordered to be paid have not been quantified . From th e scanty report, I have surmised that the appellant was admitting that the respondent had indeed cultivated the tobacco. He also said the respondent had not processed the tobacco but that "we have processed it now'. It is not clear who the 'we' referred to was . To this end, it is my considered opinion that the court below would have heard the case more fully and record the process more substantively to remove any vestige of doubt. It is my view that the admission was qualified and the lower court ought to have heard the appe llant and the defendant to understand the said qualifica tion. Each party should have been a!iovved to give evidence on th eir claims. in any c2..se , a proper hearing means that parties have the right to be heard, the right to cross exam ine the other party and the right to be given the reasons for any decision made. I find that rules of natural justice were not followed herein . The appe llant was deprived his right to be heard . I find therefore that the lower court did not establish on merit the awarding of the MK117 ,000 .00. To this end, the appeal succeeds on all grounds. I hereby quash the judgement of the lower court and set aside the order of Mk117,000.00 and the order for costs. Having established that there was an admission, albeit qualified, I order that the matter be reh eard before another · magistrate so that the award, if any, can be made based on merit, after both parties have been heard. It is so ordered Made in Chambers at Mzuzu Registry this 24th day of April 2017 • - 4