Malinki and Another v City of Blantyre (Civil Cause 427 of 1985) [1987] MWHC 26 (27 January 1987)

IN THE HIGH CONRT OF MALAWI PRINCIPAL REGISTRY CIVOL CAUSE NO. 427 OF 1985 BETWEEN: TITHOKOZE MALINKI AN INFANT.....00cccooo. ISt PLAINTIFF TRENE KUMSINDA end PLAINTIFF he “_ and - CITY OF BLANTYRE eoooooe oo oe ooo eo eo oO eo oO OC OCC OC UK DEFENDANT Coram: MTEGHA, J. Saidi of counsel for the plaintiffs Msisha of counsel for the defendant Mkumbira, Official Interpreter Phiri, Court Reporter RULING After I had delivered judgment in this matter counsel for the defendants immediately rose to address me on two questions. Firstly he wanted to address me on the question of costs and secondly on the points raised by Order 8 : of the Rules of the Supreme Court. I immediately thereafter adjurned the consideration of these matters in Chambers. Mr. Msisha has submitted that the order of costs as it stands would cause and create problems on taxation because there are two plaintiffs. He submitted that if the second defendant was appearing purely on behalf of the infant plaintiff, the costs would be for the infant plaintiff only and not for the second plaintiff. However, Mr. Msisha submits, she too has a separate claim, and on taxation each of the plaintiffs would be entitled to a separate bill of costs. He submits that there should be one set of costs for both plaintiffs, and if it is intended to have two separate bills of costs, then the infant plaintiff is entitled to costs on the High Court Scale, and the mother plaintiff should be entitled to subordinate court scale of costs because she has recovered an amount well within the jurisdiction of subordinate courts. For all practical purposes, Mr. Msisha submits, her claim was an independent one and it was not necessary that the actions should have been brought together. She should have waited and sued herself later. Secondly, Mr. Msisha submits that an order should have been made under Orders 80 of the Rules of the Supreme Court as to the disposal of the K3,000-00 which the infant Bh an a we Bw plaintiff has been awarded. Mr. Saidi objects to the first point. He submits that the. second plaintiff is entitled to costs on the High Court Scale, because her action depended on the first plaintiff's case, which was reasonable and proper. It is wrong, Mr. Saidi submits, to expect the second plaintiff to wait for the outcome of the first plaintiff's case. He doeSnot wish to be heard on the second point raised by Mr. Msisha. I will now turn to the first point which has been raised by Mr. Msisha. Section 31(1) of the Gourts Act provides that where an action is commenced in the High Court, which action could have been commenced in the subordinate court, the plaintiff shall - not be entitled to any more costs than those he would have been entitled to if the action had been commenced in the subordinate court. However, S.31(2) of the Act gives discretion to the court to allow a litigant his costs on the High Court scale where the court is satisfied that the reasons for bringing the High Court are sufficient. It was contended by Mr. Msisha that there were no sufficient grounds for the second defendant to bring her case in the High Court because she knew very well that she could not recover more than K2,500-00 which is within the jurisdiction of the subordinate courts. In G. D. Wasili vs. Clan Transport(Malawi)Limited Civil Case No. 506 of 1981. Skinner, Chief Justice, as he was then, stated that "The test as to sufficient reason for bringing the action in the High Court would be for example, if it was substantial and not trivial, or if it raised question of facts or law which maybe difficult to determine." Similarly, in Trustees of Dedza Dioces Vs. Mario Rocha MSC A Civil. Appeal No. 3 of 1984, Skinner, Chief Justice as he was then, delivering the judgment of the court said, " Seceooee the question of apparent value of the plaintiffs claim at the time of the commencement of the proceedings is somethiug which court has to take into consideration when ascertaining whether the action was substantial for the purposes of deciding on whether or not to excercise the descretion provided for in S. 3102) ..cccocsccoee what is sufficient reason nust be judged objectively, It would be sufficient reason for the purpose of the subsection if a plaintiff had at the time of the issue of the writ grounds for supposing that more than K2,500-00 could be recovered." I would add that what had been stated above by the former B/ eos wy ae Chief Justice need not be the only reasons for the judge to use his discretionary powers under the subsection to award costs on the High Court scale rather than on a subordinate courts scale. There may be cases where a set of facts will entitle a nunber of persons to have a cause of action against one or more defendants, with claims in damages for less than K2,500-00. If such claims are brought together in one action, the judge will use his discretion as to which scale to award damages if the action was brought in the High Court. He nay have to look at the convenience of taking such actions together. In the present case there are two plaintiffs - one minor, who could not have brought the action hinself as he is under a disability. He could only do so through his mother as next friend or somehody else. Her mother also had a different claim arising out of the sane facts. On the facts before me, the mother, who is the second plaintiff could have brought the action on behalf of the first plaintiff to the High Court alone without citing the first plaintiff as a party to the proceedings, but in her capantry as next of kin and friend. If such were the position, I-see nd reason why her clain, although it could not be taken commenced in the subordinate court could not be taken together. If this is the position I see no justification in saying that there would be two sets of costs. In my judgment, the case involved negligence and the facts were sufficiently complicated and interwoven so that the proper course would have been the one taken by the second. plaintiff i.e. commencing her action jointly with the infant plaintiff. I therefore order that there will be one set of costs for both plaintiffs in the action, and it will be up to the Taxing Master to decide what would be the appro- priate costs in this matter, taking into account that the second plaintiff action could have been commenced in the subordinate court. I now turn to the second point raised by Mr. Msisha - that I should have ordered that the danages which the infant plaintiff has recovered should be dealt with in accordance with Order 80/12 of the Rules of the Supreme Court. That order provides that where in any proceedings - (a) "money is recovered by or on behalf of or adjudged or ordered or agreed to be paid to or for the benefit of, a person under disability ....eeccee. the money shall be dealt with in accordance with directions given by the court, whether under S. 174 of the County Court Act, 1959 or this rule or under both that section and this rule and not otherwise.....o" The rule then sets out the directions. fan grateful to Mr. Msisha to have raised this point as it certainly escaped my attention, Having read the order, I an of the view that the proper course would be for the noney (B4000-00) tp-be paid to the High CourtBlantyre, which shall invest the same in Post Office Savings Bank and to pay to the infant plaintiff for his benefit from tine to time, such monies not exceeding K500-00 per annum. if f A . — . . PEM Ka be. H. M. Mtegha (| JUDGE ~ Made in Chambers this 27th day of January, 1987 at Blantyre.