Mazinga v Beni & Ors. (Misc. Civil Cause 76 of 2016) [2017] MWHC 113 (24 May 2017)

MALA WI JUDICIARY IN THE HIGH COURT OF MALA WI PRINCIPAL REGISTRY MISCELLANEOUS CIVIL CAUSE NO. 76 OF 2016 [BEING CIVIL CAUSE N0.2 OF 2016 BEFORE THE SECOND GRADE MAGISTRATES' COURT SITTING AT NAMITAMBO] BETWEEN: PHIL EMO N MAZING A ........................................ PLAINTIFF ........ AND MASAUKO BENI. ............................................... ... 1 DEFENDANT ST zN» DEFENDANT K. MISOKWE ....................................................... A. J. PANE ............................................................ 3RD DEFENDANT CORAM: THE HON. JUSTICE H. S. B. POTANI Mr. Tandwe, Counsel for the Plaintiff Mr. Kalua, Counsel for the Defendant Mr. Mathanda, Court Clerk RULING By way of an ex parte applica execution, staying pending tion, the defendants obtained an order of the court appeal, against the judgemen t of the Second Grade Magistrate's [SGM] Court sitting at Namitambo in Chiradzulu district whereby it was adjudged that the defendants do pay the plaintiff the sum of Kl ,500,000.00. The ex parte stay order required the defendants to file an inter partes application which was done and this is the court's determination thereon. In support of the application, the defendants rely on the affidavit that was filed on the ex parte application as sworn by counsel, Wanangwa Kalua. There is no affidavit filed by the plaintiff as, according to counsel, the plaintiff was never served with the defendants' affidavit but counsel indicated the hearing that that notwithstanding of the matter could still proceed. In the affidavit in support and counsel's arguments presented to the court, two points have been advanced in support of the application. Firstly, the defendants have argued that the judgement sum awarded by the SGM is in excess of the Kl ,000,000.00 statutory maximum provided for in section 39 of the Courts Act therefore was made without the requisite jurisdiction as such to allow execution to issue on sueµ a occasion judgement would some injustice. The second point of argument is that from the SGM' s judgement, it was not the defendants who but some other persons benefitted from the conduct or tort out of which the case arose as such it is submitted that it would be unjust for the defendants sum. to pay the judgement The defendants' application is vigorously resisted by the plaintiff and in that regard counsel has put forward three points. In the first instance, counsel has faulted the application for not indicating in the summons under which provision or authority it is being made. In response to this, while admitting that the summons has such indeed an omission, it has been contended for the defendants that the initial ex parte summons having indicated the provision and authority under which the application for stay was made, that cures the omission in the inter partes summons. The court would tend to agree that since the ex parte summons clearly indicated the provisions under which the application for stay was being made, the omission to so indicate in the int er partes s ummons ought not r ender the summons fatal. As rightly argued by ing a consequence of to be read togethe iew be pedantic, in the circums counsel for the defendant, the latter summons be made on the former summons, t court's considered v application merely the provi sion under which it was made. on the ground that the inter parties su mmons does not indicate tances, to throw away the r. It would, in the he two ought the order The second argument of the plaintiff in c hallenging the application for stay is th at there is no appeal on the basis of which an application for stay of execution pending appeal can stand. In thi s regard, counse l has drawn the court' s attention to Order XXXIII rule 1 [ 3] and [4] of the Subor dinate Court Rules which requires a n otice within 14 d l to be filed e judgement appealed ays from the date of th ed. According to counsel, of appea against and to be served on all parties affect been no notice of appeal ex that as matters stand, there is no appeal on pending appeal c that having deposed in paragraph 5 of the affidavit in sup appealed and t remains an ed on the pl the basis of which stay of execution en contended for the d hibited by the defendants or serv ving not filed an affidavit to dispute t there has aintiff such· port that they have In response, it has be it hat assertion, he plaintiffs ha an be had. efendants . . undisputed fact that the defendants lodged an appeal. Counsel has further argued that the present application having been made as a Miscellaneous Civil Cause and not under an Appeal Cause, the case file cannot be expected to containe d the record of appeal and that the defendants proceeded by way of a Miscellaneous Cause because the record of the lower court proceedings is not yet ready. In all frankness, the court takes the defendants arguments and submissions with a pinch of salt. To begin with, if indeed the defendants filed a notice of appeal why not exhibit it in the affidavit in support even in a Miscellaneous Cause so as to demonstrate that indeed there is an appeal as required by Order XXXIII rule 1 [3] of the Subordinate Court Rules. Again why not se rved it on the plaintiff as required by O rder XXXIII rule 1 [ 4 ] of the Subordinate Court Rules. It is also the position of the court that the defendants cannot be heard to fault the plainti 5 of the affidavit in support that the defendants have appealed when re affidavit to dispute paragraph ff for not filing an cord shows serious dou bts that the plaintiff was served with the affidavit in suppor t. It should be remembered that that affid avit was initially use n at d on an ex parte applicatio which point it was no t served on the plaintiff and the defendants having merely adopted it at the inter partes he likelihood of it not having bee hearing, t n served is there. In the end r esult, the court would find that the defendants have failed to show that there is an appea e basis of which an appl ication for stay of ex l on th ecution pending appeal can stand and on that s as it is, the application has no core, technical ground to stand on. Such being the case, it is regret table that the court cannot proceed to consid er the third argument by the plaintif f in opposition to the st ay which goes to the merits o f that app lication revolving around issues of the SGM having no jurisdiction and the defendants not being beneficiaries of the conduct leading to the action. The application is accordingly dismi ssed with costs to the plaintiff. Made this day of May 24 2017, at Blantyre in the Republic of Malawi. H. S. B. POT ANI JUDGE 4