Phiri v Phiri (Matrimonial Cause 45 of 2015) [2021] MWHC 354 (30 March 2021)

The Republic of Malawi IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY MATRIMONIAL CAUSE NO. 45 OF 2015 BETWEEN VIOLET PHIRI PETITIONER/RESPONDENT AMOS PHIRI RESPONDENT/APPELLANT AND CORAM JUSTICE W. Y. MSISKA Mr. Kita, of Counsel for the Petitioner/Respondent Mrs. Ottober, of Counsel for Respondent/Appellant Zulu, Official Interpreter RULING Introduction This is a ruling of the Court on preliminary objections raised by the The Petitioner (Respondent) applied to this court to Respondent/Appellant. strike out a notice of appeal pursuant to Order I, Rule 18 of the Supreme Court of Appeal Rules. The matter was set down for hearing on 1014 March2021. On q gth March, 2021, the Respondent/Appellant filed a notice of preliminary objections indicating to the Court that on the hearing of the application to strike out the notice of appeal, the Respondent/Appellant was desirous to have two issues resolved by the Court first, before the application to strike out notice of appeal is heard. The two issues that.the Court is called upon to resolve are that: (a) Order I rule 18 of the Supreme Court of Appeal Rules under which the application by the Respondent/Petitioner is based does not provide for striking out the appeal and, therefore, the application to strike out the notice of appeal has been incompetently brought; and (b) The High Court does not have jurisdiction to strike out the notice of appeal. On the date of hearing of the application to strike out notice of appeal, both parties were agreed that the Court should first consider the preliminary objections raised by the Respondent/Appellant before hearing the application to strike out the notice of appeal. It was thought that the resolution of the two issues were determinant, either way or the other, of the life of the summons to strike out notice of appeal. Submissions by the Respondent/Appellant for first issue, Counsel When arguing the the Respondent/Appellant acknowledged that Order I rule 18 of the Supreme Court of Appeal Rules deals with concurrent jurisdiction between the High Court and the Supreme Court of Appeal. As such, an application in which there is concurrent jurisdiction between the two courts, an application should first be brought before the High Court and if the High Court refuses to grant the application, then that same application should be brought as a fresh application before the Supreme Court It was the further argument of Counsel that Order I rule 18 of the of Appeal. Supreme Court of Appeal Rules is about prematurity and maturity of applications before the Supreme Court of Appeal. Therefore, Order I rule 18 has nothing to do with striking out the notice of appeal. Since the applicant has cited a wrong provision under which the application is based, the application ought to be dismissed. As authority for the proposition that an application should be based on some rule and, in absence of citing the rule or indeed citing the application is the wrong rule under which the application is brought, incompetent, Counsel cited the case of FW, Kalinda v, Limbe Leaf Tobacco Civil Cause No. 1542 of 1995 in which Chimasula Phiri, J. as he then was, stated that the rationale for indicating the provision under which an application is made is to ensure that both the court and the other party are given opportunity to prepare for the matter. On the issue of the High Court not having jurisdiction to strike out a notice of appeal, Counsel submitted that the High Court derives its jurisdiction from section 108 of the Constitution and section 11 of the Courts Act. It was the contention by Counsel that neither of the provisions gives the High Court power to strike out an appeal let alone a notice of appeal. If such course of action were allowed, then the end result of the application by the Petitioner/Respondent would be extinction of the appeal under section 7 of the Supreme Court of that has power to It is only the Supreme Court of Appeal Appeal Act. determine an appeal. Submissions by Petitioner/Respondent In response Counsel for the Petitioner/Respondent argued that the notice of preliminary objections be strike out notice of appeal for being incompetent 3 Preliminary objection for the hearing of the Defendant's states as follows ".... application for stay of hearing of assessment of damages and stay of There is no such application before the Court. execution of judgment. Further, there is nothing in Order 10 rule 1 of the Court (High Court) Civil Procedure Rules, 2017 (CPR) which states that a party can file a notice. of preliminary objections. As authority to support is argument Counsel cited the case of Dr. Saulos Chilima and Dr. Lazarus Chakwera y, Electoral Commission & Another Constitutional Reference No. 1 of 2019 where the Court struck out a certificate of non-compliance because CPR do not provide for the filing of such a document. Similarly, the CPR does not provide for a therefore, there was irregularity or non- notice of preliminary objection. compliance in the application by the Petitioner/Respondent, the proper way was to make an application under Order 2 CPR and not by way of preliminary If, objection. is not On the contention that the application to strike out notice of appeal provided for under Order I rule 18 Supreme Court of Appeal Rules, Counsel stated that Order I rule 18 Supreme Court of Appeal Rules simply provides for the mode of lodging any application with the effect that if there is concurrence is the High Court. The same is true for of jurisdiction, Order 10 rule 1 CPR, which is, so to speak, a general provision under which It is for that reason that Order I rule 18 of the applications are or, may be made. Supreme Court of Appeal Rules should be understood in that light. the first port of call for As regards the issue of the High Court lacking jurisdiction to strike out a notice the High of appeal, Counsel Court has jurisdiction to entertain an application to strike out a notice of appeal. Counsel cited Order HI rule 19 of the Supreme Court of Appeal Rules as authority. Learned Counsel pointed out that when parties appeal to the Supreme the Petitioner/Respondent argued that Court of Appeal against decisions of the High Court, the Supreme Court of Appeal will be seized of the matter and therefore assume jurisdiction when the appeal has been entered in the Supreme Court of Appeal. Where an appeal has not been entered, every application must be made to the High Court. As to the meaning ascribed to the words "entering the appeal" Counsel cited the case. of Lackson Chimangeni Khamalatha and Others v Secretary General Malawi Congress Party and Others MSCA Civil Appeal No. 67 of 2016 wherein Chipeta JA held that an appeal is entered where the record of appeal has been filed with the Supreme Court of Appeal and the matter has been assigned a case number. Submissions in reply by the Respondent/ Appellant Counsel for the Respondent/Appellant was brief and submitted that though the application refers to preliminary objection to the hearing of the Defendant's the Court will application for stay of hearing of assessment of damages, remember that I appeared before it in another matter which was based on this It was an oversight on the part of the Respondent/Appellant not to subject. effect corrections in the papers. Otherwise, the Petitioner/Respondent has not suffered any prejudice as shown by his extensive oral response to the Though the CPR do not specifically provide for the the notice of preliminary objections. mode of bringing before the Court preliminary objections, preliminary objection is properly before Court under the doctrine of inherent jurisdiction which has also been cited as a basis for lodging the notice of preliminary objections. It was the argument by Counsel that although Order I rule 18 of the Supreme Court of Appeal Rules may be a general provision, but it cannot be relied upon as a basis for the application to strike out a notice of appeal. Order I rule 18 of the Supreme Court of Appeal Rules has nothing to do with striking out a notice of appeal. Lastly, it was the view of learned Counsel for the Respondent/Appellant that in the case of Lackson Chimangeni Khamalatha and Others v. Secretary General Malawi Congress Party and Others (supra) nowhere in the judgment has it been said that the High Court has powers to strike out a notice of appeal. Law and Argument It must be pointed out that the application to strike out the notice of appeal premised on Order I rule 18 of the Supreme Court of Appeal Rules. Order I rule 18 is reproduced in full for the sake of putting matters into context. It is states as follows: - or to the Court, "Whenever an application may be made either to the Court below it shall be made in the first instance to the Court below but, if the Court below refuses the application, the applicant shall be entitled to have the application determined by the Court. The understanding by this Court is that, and as rightly observed by both the and Respondent/Appellant of the Supreme Court of Appeal Rules confers on the High Court (Court below) and the Supreme Court of Appeal (the Court) concurrent jurisdiction. This Petitioner/Respondent, Order I rule concurrent jurisdiction is triggered when the High Court (Court below) refuses In the consideration of this Court that for the High to grant an application. Court (Court below) to exercise such concurrent jurisdiction, the basis of an application should invariably be in accordance with the practice and procedure governed by the rules of procedure being used in the High Court (Court below) In (High Court) Civil Procedure Rules 2017. case the Court in this circumstances where the High Court (Court below) refuses the application, the applicant is entitled to have recourse to the Supreme Court of Appeal (Court) for determination. It, therefore, follows that where the applicant has recourse to the Supreme Court of Appeal, he shall have regard to practice and procedure in that Court as regulated and governed by the Supreme Court of Appeal Rules. In the present application, this Court is of the firm view that not all applications are subject to concurrent jurisdiction. There are a selected few applications, and these selected applications have corresponding rules of procedure in both superior courts. Examples of applications in which the two would be said to have concurrent jurisdiction and, by no means exhaustive, are those applications which involve suspension or stay of execution; and leave to appeal. If such applications are refused by the High Court (Court below) then the applicant can in aid the Supreme Court of Appeal (the Court) by lodging a fresh still call application in that Court for its determination. It should be acknowledged that the Courts have on uncountable times emphasized the need to cite the rule or indeed the rules upon which an application is premised. In a case where a rule upon which the application is It is the view of this Court brought is not cited, the application is incompetent. and I hasten to say that the rules cited as the basis of an application should be the rules governing and regulating practice and procedure in the particular Court in which the application is brought for determination. This Court is fortified in its reasoning by the judgment of the Malawi Supreme Court of Appeal in the case of The State v Minister of Finance and Another ex Parte Bazuka Mhango and Others Civil Appeal No. 17 of 2009 (unreported) in which the Court expressed itself as follows: "The basis of the applications exercised our minds. The respondent cited the inherent powers of the High Court and section 108 of the Constitution. We had difficulty in accepting this. The practice and procedure in the High Court is governed by section 29 of the Courts Act. The High Court is enjoined to follow the practice and 999 edition procedure under the Supreme Court Practice Rules, rules made under the Courts supplemented by the unless Act We are aware that the appellant did not take issue with the basis of or the Order itself in the Court below. The assumption the Court below had such inherent power to order was that "release of allowances because it enjoyed unlimited jurisdiction under section 108 of the Constitution. We would be very slow to endorse this" The application which has given rise to the preliminary objections has been premised on rules of procedure alien to this Court. As this Court understands it, O. J rule 18 of the Supreme Court of Appeal Rules cited as the basis for the application to strike out notice of appeal is only applicable to applications lodged in the Supreme Court of Appeal. Unless specifically provided for under the Supreme Court of Appeal Rules, this Court does not see the reason why it should be called upon to determine an application using rules of procedure regulating and governing practice and procedure in a different court. The tools of trade for this Court are the CPR made under section 67 as read with section 29 of the Courts Act and not the Supreme Court of Appeal Rules made under section 27 of the Supreme Court of Appeal Act. On the issue raised by Counsel for the Petitioner/Respondent that the Court (High Court) Civil Procedure Rules generally and, in particular, Order 10 rule 1 does not provide for a notice of preliminary objection, this Court agrees with It jurisdiction. is the understanding of this Court it should be noted that the notice of preliminary that observation. However, objections under consideration has also been premised on the doctrine of inherent inherent jurisdiction is used as a fall-back position in situations where there is no specific rule of law that provides for.the mode of bringing to the attention of the court a particular matter or issue for its determination. In the case of Grobbelaar v News Group Newspapers Ltd [2002] UKHL 40 the House of Lords adopted a definition of inherent jurisdiction as follows: that "The inherent jurisdiction of the court may be defined as being the reserve or fund ofpower, residual source of powers, which the is just and court may draw upon as necessary whenever equitable to do so and in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them. it Similar views were also expressed by the Malawi Supreme Court of Appeal in the case of Registered Trustees of Youth and Society v Greizedar Jeffrey and Others Civil Appeal No. 70 of2018 wherein Mzikamanda, JA stated as follows: 'Inherent jurisdiction is a doctrine of the English common law that a court has jurisdiction to hear any matter that comes before it, unless a statute or rule limits that authority or grants exclusive jurisdiction to some other court or tribunal. The doctrine of inherentjurisdiction is resorted to sometimes in order that injustice be avoided and efficiency in litigation be ensured. Some look at inherent jurisdiction as residual, automatic or ex officio authority of the court of law to regulate proceedings before it to facilitate the exercise offulljudicial powers by the.court. Clearly, the doctrine of inherent jurisdiction serves to fill the lacunae to enable these insightful the proper administration of justice. This Court adopts sentiments and states that the notice of preliminary objections was properly before the Court. This Court also agrees with Counsel for the Petitioner/ Respondent that the way the notice of preliminary objection was framed was misleading. Correctly, the notice of preliminary objection as framed made reference to different matters it ought not be which matters were not before the court. For that reason, entertained. However, from the spirited, extensive and formidable arguments for the Petitioner/ Respondent against the preliminary objections by Counsel was indicative of the fact that he was in no way prejudiced by the mistakes or this Court errors appearing in the notice of preliminary objections. Further, being mindful of the overriding objective of the CPR, it was. of the view that the error was not substantive as to warrant expungement. Disposal of the matter The Court has carefully considered the arguments by both Counsel, the skeletal] arguments and case authorities cited both in support and in opposition to the This Court has come to the conclusion that the first preliminary objection. preliminary objection has been made out. The rule cited as the basis for striking out the notice of appeal does not have application in this Court and cannot in any way be used as a basis for bringing such an application in this Court. All in all, as the application was brought under Order J rule 18 of the Supreme Court The of Appeal Rules, this Court has therefore not been properly moved. application is misconceived and incompetent and ought Accordingly, the application to strike out notice of appeal to be dismissed. is dismissed with costs to the Respondent/Appellant. Having found that the application is incompetent and misconceived On the first limb of the preliminary objection, it is the considered view of this Court that it will not be worthwhile to consider in detail the second limb of the preliminary objection with respect to lack of jurisdiction by the High Court as at the very least it has been rendered moot. Pronounced in Chambers this 30" day of March 2021 at Lilongwe in the Republic of Malawi. W. Y. MSISKA JUDGE 11