Mulira v Malawi Sun Hotel and Conference Centre Limited (Misc. Cause 42 of 2016) [2017] MWHC 104 (11 May 2017)

JUDICIARY IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY MISCELLANEOUS CAUSE NO. 42 OF 2016 {Being Civil Cause NO. 765 of 2015 before the Principal Magistrate Court: sitting at Blantyre) BETWEEN REGINA MULIRA {suing on her own behalf and on behalf of other of Rodrick beneficiaries Masanje {Deceased) .................... ............... PLAINTIFF ........ AND MALAWI SUN HOTEL AND CONFERENCE CENTRE LIMITED ...... ....... DEFENDANT CORAM HER HONOUR EDNA BODOLE Khan, of Counsel, for the Plaintiff Ng'omba, of Counsel, for the Defendant Mrs Chilimampu nga, Court Clerk RULING against the defendant jn the lower court for loss of expectation of life and loss of dependency. The this action commenced The plaintiff damages claiming defendant made an order transferring was found liable. Upon application the issue of assessment the lower court to the High Court by the plaintiff, of damages k,� :� -OUA"t ,_ ·e-·, ... ,., .::\ P ·� t) r ... � �.._ ,�.� �·�. ·-..... , I ..... > ........ etii � � on the basis that the its jurisdiction damages which is K2,000,000. to be awarded in this matter would be in excess of matter came for assessment When the objection alleging the lower court had no jurisdiction to transfer preliminary proceedings to the High Court. As such the assessment proceedings before this court are a nullity and should be dismissed. of damages, a raisec;l the defendant . I shall now examine the purported referral or transfer of the assessment proceedings to the High Court. Section 46 of the Courts Act is very clear as to how a subordinate court can effect transfer of proceedings from itself to another court. It states that "(1) Subject to any written law, a subordinate court may - (a) transfer before any proceedings grade; a lesser itself to a subordinate court of (b)transfer before any proceedings itself to any subordinate court· of a higher grade with the consent of such court; and (c) direct the transfer to itself subordinate court of a lesser of any proceedings before any grade. (2)A subordinate subsection (1)." court shall comply with any direction it under given to This section another empowers subordinate court to transfer High Court. a subordinate court but not the proceedings from itself to 41 of the Courts clearly the jurisdiction proceedings in any court relinguishes his claim shows that where a plaintiff court, he cannot later bring of a subordinate of the relinquished in respect part. Any Section to be within subsequent court, therefore, includes the High Court. 40 of the Courts Section the defendant involves matters beyond the jurisdiction of a s any of the parties Act is to the effect that if any defence or counterclaim may apply to the High Court ubordinate court, of the for the transfer of _ High Court may grant the order and the action will proceed as if been instituted proceedings. The it had originally the defence subordinate Court. from itself to the High Court. from a subordinate c in the High or counterclaim the subordinate court, Court. It must be observed that even where of the defendant exceeds the jurisdiction of a court cannot transfer proceedings to the High proceedings It empowers the High Court to transfer proceedings This section does not empower a subordinate court to transfer ourt to the High Court. Under section 26 of the Courts Act the High Court has general supervisory revisionary jurisdiction Court to transfer proc empowers the High ts to the High Court. over all subordinate courts. The section eedings from subor dinate cour and In Gladys Ndunya Justice K. Nyirenda stated as follows: v Gift Ndunya Miscellaneous M atrimonial Cause No. 24 of 2015 proceedings court and not court can only transfer " ... a subordinate to the High Court. The Courts Act also puts the subordinate language that it is the High Court that can matter. transfer the Courts Act nor the Subordinate Court Rules empowers a magistrate court to "refer11 or "defer11 a matter in quite unambiguous to itself a case from a subordinate to the High Court court. Neither . to another ... A magistrate court, under the Courts jurisdiction.1 whose jurisdiction is essentially statutory, cannot Act refer or transfer a case to the High Court for want of Gladys expressed in Ndunya and Gift Ndunya (supra) The sentiments the Courts Actvis-a-vis proceedings to the that a magistrate court has no jurisdiction I find that the lower court had no jurisdiction to in transferring High Court are clear and self-explanatory. find to transfer I, therefore, a matter to the High Court. a subordinate jurisdiction the assessment to transfer in regard court's proceeding proceedings an s to the High C ourt. This court cannot hear t he assessment d they are .dismissed with costs to the defendant. Made in chambers this 11 th day of May, 2017 a t Blantyre. . EDNA BODOLE (MRS) ASSISTANT REGISTRAR 4