Trust Securities Limited v Finance Bank of Malawi (In Liquidation) (Commercial Case No. 51 of 2007) [2008] MWCommC 12 (07 April 2008);

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IN THE HIGH COURT OF MALAWI

 

COMMERCIAL DIVISION

BLANTYRE REGISTRY

 

COMMERCIAL CASE NO. 51 OF 2007

 

 

BETWEEN:

 

TRUST SECURITIES LIMITED………………………………………………………………….PLAINTIFF

-and-

 

FINANCE BANK OF MALAWI (IN LIQUIDATION)…………………………DEFENDANT

 

CORAM: HON. MR JUSTICE F.E. KAPANDA

Mpaka of Counsel, for the Applicant/Defendant

Kondiwa of Counsel for the Respondent/Plaintiff

 

 

_____________________________________________________________

RULING

_____________________________________________________________

 

Kapanda, J:

 

INTRODUCTION

The Applicant (Defendant) has taken issue with the Plaintiff on the action the latter took out before this court. It is really an application for statutory interpretation of a statute. The statute in issue is rule 10 of the High Court (Commercial Division) (Mandatory Mediation) Rules, 2007. As it were, the court will have to determine the effect of such interpretation on the Plaintiff’s action.

Further, it is prayed that the costs of and incidental to this application be for the Applicant.

Indeed, this application will entail the court considering and deciding the effect of rule 10 of the said High Court (Commercial Division) (Mandatory Mediation) Rules, 2007 on the sustainability of the Claimant’s case. Should the court be of the view that the Plaintiff’s key evidence in support of the claim for K11 971 684.80 is not acceptable in court, the whole of the Plaintiffs case falls. It is therefore obvious that the determination of the admissibility of the evidence obtained during mediation is not only a question of law but will also dispose of the entire cause.

 

FACTUAL BACKGROUND

The facts of this case are well put in the affidavits filed by the parties. They are lengthy but will have to be summarized.

As far as this court was able to discern from the said affidavits, a rundown of the facts, in a chronological order, obtaining in this matter are as follows:-

On 27th December 2006 the Plaintiff commenced the present action by way of Originating Summons claiming sums of money from the Defendant bank which appeared in the Plaintiff’s accounts as not having been paid by the Defendant bank.

It is in evidence that between November 2007 and January 2008 the matter underwent mediation process. In the course of the mediation process the court ordered the Plaintiff to engage auditors to look at their accounts. Further, the Defendant was also ordered to have their own auditors to comment on the Plaintiff’s auditors findings. The above is borne out in the Order of the Court dated 13th November 2007. Moreover, on 19th December 2007, the Court made a further order directing the Defendant to provide the Plaintiff with required information for audit purposes such as deal notes so as to enable the Plaintiff come up with a complete audit report. Again this appears to come out from the Order of the Court dated 21st December 2007.

There is no denying of the fact that on 18th January 2008, the Plaintiff’s auditors came up with an audit report based on a forensic verification exercise supported, inter alia, by information given by the Defendant in compliance with the order of the Court dated 21st December 2007.

It is further put in evidence that on 31st January 2008, the Court declared that mediation had failed and ordered the matter to proceed to trial. However, on 11th February 2008 the Court directed, inter alia, the Plaintiff to file an Amended Originating Summons and supporting affidavit not later than 18th February 2008.

The said Re-amended Originating Summons and supporting affidavits sworn by MacField Maneya and Dorothy Ngwira were filed on 18th February 2008. The affidavit in support of the said Re-amended Originating Summons sworn by Dorothy Ngwira exhibits the audit report dated 18th January 2008 as exhibit “DN 1” . The Plaintiff seeks to rely on this exhibit.

The Applicant (Defendant) opposes the admissibility of the audit report. The Applicant now makes an application to this Court for an order and directions striking out the affidavits in support of the Re-amended Originating Summons and dismissing the plaintiff’s matter. In addition, the Applicant (Defendant) wants this court to entering judgment in its favour on the grounds that the audit report, on which the Plaintiff’s claims appear to be based, is admissible in the proceedings or at all.

The Plaintiff (Respondent) opposes the application herein. Accordingly, the Respondent is asking this court to consider dismissing the application with costs.

 

ANALYSIS

As pointed out earlier, the Respondent opposes the application herein. And, indeed, for all intents and purposes it has been submitted by the Respondent that the application should be dismissed. For lack of brevity I will summarize and replicate its arguments. The said points of view were put into the following categories:-

Admissibility of the audit report under O.41, r. 6 RSC.

It is the submission of Counsel for the Respondent that the Court may order to be struck out of any affidavit any matter, which is scandalous, irrelevant or otherwise oppressive. Counsel for the Respondent cites Order 41, r 6 of the Rules of the Supreme Court (RSC) in support of this contention. He further adds that the Court will only strike out matter that is both scandalous and irrelevant, or is otherwise oppressive.1 It is further urged on behalf of the Respondent that the position at law is that the court is not bound to strike out such matter and relies on the case of Re J [1960] 1 WLR 253;[1960] 1 All ER 603. Moreover, it has been put by Counsel that the court will strike out portions of affidavits dealing with negotiations for a settlement, if necessary upon a special application made for that purpose. In his further opinion it follows, therefore, that under O.41, r 6 RSC, the Court can only strike out the matter from an affidavit or indeed the whole affidavit if the same is both scandalous and irrelevant, or if it contains matters relating to negotiations for a settlement.

Accordingly, he opines that neither the audit report nor any affidavit filed by the Plaintiff contains such matters as may fall under O.41, r 6 RSC.

 

Is the audit report inadmissible under Rule 10 of the High Court (Commercial Division) (Mandatory Mediation) Rules 2007?

It is the submission of Counsel for the Respondent that Rule 10 of the High Court (Commercial Division) (Mandatory Mediation) Rules, 2007should guide the court in answering the above question. The said Rule 10 of the High Court (Commercial Division) (Mandatory Mediation) Rules, 2007 provides as follows:

10 – (1) All communications at a mediation session and the mediation notes and records of the Judge shall be deemed to be confidential.

  1. Without derogation from the generality of sub rule(1) –

    1. a record, report, settlement, agreement, except where its disclosure is necessary for the purpose of implementation and enforcement, and any other documents required in the course of mediation shall be confidential;

    2. a Judge shall not –

  2. disclose information given in the course of the mediation to a person who is not a party to the mediation without the consent of the parties; or

  3. be a witness in any Court proceedings relating to the same matter;

    1. a party to a mediation shall not rely on -

 

  1. the record of the medition;

  2. statement made at the mediation session; or

 

  1. any information obtained during the mediation, as evidence in Court proceedings or any other subsequent settlement initiative, except in relation to proceedings brought by either party to vitiate the settlement agreement on the grounds of fraud.

 

As I understand him, Counsel thinks that the rule above is designed to protecting materials forming part of negotiations for settlement at mediation from being taken as evidence of legal responsibility. It is said by the Respondent by way of example that where a party to a mediation session communicated that he might settle and later on changes position, the opposite party cannot rely on any document containing such communication. Counsel further says that Rule 10 of the High Court (Commercial Division) (Mandatory Mediation) Rules, 2007 cannot be taken as an outright ban of use of all documents as such an interpretation would lead to absurdity. This, it is further said, is because the obligation to give discovery is a continuing one throughout proceedings. The case of Mitchell vs. Darley Main Colliery Company2 is then called in aid of this argument.

Additionally, the Respondent submits that it is for this reason that Courts have held that not all material obtained in mediation is inadmissible except such as material obtained on “without prejudice” basis. Counsel says that the test is whether it would in the circumstances be fair and just to allow the Plaintiff to rely on the audit report. The court has then been invited to read the case of Smith Group plc vs Weiss3 and draw lessons from that respecting this submission.

The Respondent then says that the information obtained from the Defendant is not “without prejudice” information and it would not be unfair and unjust for the plaintiff to rely on the audit report. Accordingly, the Respondent concludes, the audit report is admissible in these proceedings.

 

Should the Court strike off the Plaintiff’s affidavits in support of Re-amended Originating Summons?

Having argued that the audit report is acceptable in these proceedings, the Respondent continues to submit that there in no basis on which the Court would properly strike off the Plaintiff’s affidavits in support of Re-amended Originating Summons.

Further, Counsel reckons that even in the unlikely event that I hold that the audit report is inadmissible; the proper course would be to expunge the said exhibit from the affidavit of Dorothy Ngwira and not strike off both affidavits. It is said that this is so because there would still be other material in the affidavit of Macfield Maneya on which the Plaintiff would rely on.

The Respondent finishes off by observing that the Defendant’s prayer to strike both affidavits is misconceived.

 

The plaintiff’s matter or action, should it be dismissed?

Finally, it is urged on behalf of the Respondent that this court should find and conclude that, on the basis of the arguments above, there would be no ground to dismiss the Plaintiff’s action. The Claimant surmises that this is so since there is evidence apart from the audit report to support the Plaintiff’s claim that the Defendant did not pay out to the Plaintiff the sum of K11, 971,684.80/=

It is consequently prayed that the Applicant’s application to strike out the Claimant’s affidavits on the ground that the audit report is inadmissible be dismissed with costs.

What does the Applicant say? Essentially, the submissions of Counsel for the Applicant are the exact opposite of what Counsel Mr. Kondiwa submitted before me. I trust that it will be necessary to fully put here the said arguments. It is argued on behalf of the Applicant as follows:-

 

Is application Suitable for Disposal of case?

It is argued on behalf of the Applicant that this application involves the considering and deciding the effect of rule 10 of the Mandatory mediation rules on the sustainability of the Plaintiff’s case. Thus, should the court be of the opinion that the Plaintiff’s key evidence in support of the claim for K11 971 684.80 is not admissible in court, the whole of the Plaintiffs case falls. Moreover, the Applicant opines that it is that the determination of the admissibility of the evidence obtained during mediation is not only a matter of law but will also dispose of the entire cause.

Further, the Applicant submits that at the time it presented its arguments both parties had been duly notified, by summons, of the appointment to hear this application. And, indeed that at least the court had afforded due opportunity to both parties to make representations on the application. Thus, so it is argued, the application satisfies the criteria under Order 7 rule 11 of the High Court (Commercial Division) Rules, 2007. And, in point of fact that it may be dealt with under the said Order 7 rule 11 of the High Court (Commercial Division) Rules, 2007.

Are the matters in the Affidavits Scandalous, Vexatious and Oppressive?

The Applicant has pointed out that for all intents and purposes amediation process is a formal attempt at an out of court settlement agreement. The Applicant has cited rule 5 of the Mediation Rules which states that it as an underlying purpose and nature of mediation that the parties reach a mutually acceptable resolution of their dispute. Accordingly, it is argued by the Applicant, this is contrary to the spirit of adversarial litigation in which parties would usually take diametrically opposite positions. Counsel for the Applicant further submits that mediation is an out of court settlement negotiation. Such negotiations, he continues, cannot be relied upon in evidence unless the law stipulated in rule 5 of the said Mediation Rules is disregarded.

Moreover, it argued on behalf of the Applicant that as they understand the law the Mandatory Mediation Rules are not permissive as to the status of any information or reports required or produced during mediation as the statute uses mandatory words “shall be confidential” and “shall not rely”. Thus, the legal effect is mandatory is that the information is confidential. It is additionally submitted that on accurate construction of rule 10(2)(a) of the Mandatory Mediation Rules, the audit report is confidential. It takes its confidentiality, so it is argued, from the regulating statute. The Applicant continues to say that in the same way all other information obtained during mediation is confidential under the same sub rule.

Furthermore, the Applicant says that equally, on a proper construction of rule 10(2)(b) of the Mandatory Mediation Rules, neither the Plaintiff nor the Defendant; having gone through mediation which led to the production of the audit report; can rely on it in evidence. It is further argued that on account of its confidentiality and by statute the audit report inadmissible.

Finally, the Applicant opines that the audit report, being an embodiment of an out of court settlement discussion, and being inadmissible thereby and by virtue of statute, is scandalous, vexatious and oppressive under the law. On that score, the Applicant submits, it is liable to and should be struck off.

 

Matter should be dismissed

The Applicant has pointed out that once the inadmissible information is struck off, the Plaintiff’s claim for K11, 971, 684.80 becomes unsustainable as in its view it has no foundation in fact. It is the further view of the Applicant that the claims in the Re-amended Originating Summons devoid of any factual foundation become frivolous, vexatious and an abuse of the court process. They should, accordingly, be dismissed on the basis of the law as stipulated by it above.

I wish to express my sincere appreciation of Counsel’s careful and cogent written submissions on the issues that arise for consideration in this matter. Any clarity in this ruling is essentially due to the said submissions. It has not, however, been possible to refer to each and every detail of their points of view. Actually, if I had attempted to include all their arguments this ruling would have been unnecessarily long. That notwithstanding, I have only given a sketch of the essence of the arguments of all the parties. However, the parties are advised that all their points of view will be taken into account before arriving at a decision in this matter.

Without much ado, I now proceed to consider the pertinent issues for consideration the present application. This is now an opportune time to enumerate the issues for determination in the matter.

 

ISSUES FOR DETERMINATION

The questions that have been isolated herein below arise from my reading of the application by the Defendant and the arguments of Counsel.

It will suffice to put it here that, as I see it, the following are the issues that need to be determined by me in this matter:-

(a)Whether or not the audit report is inadmissible under O.41, r. 6 Rules of Supreme Court.

(b)Whether or not the audit report is inadmissible under Rule 10 of the High Court (Commercial Division) (Mandatory Mediation) Rules 2007.

(c)Whether or not the Court should strike off the Plaintiff’s affidavits in support of Re-amended Originating Summons.

(d)Whether or not the Plaintiff’s matter or action should be dismissed.

 

If there are other secondary questions I shall also allude to them later in this ruling.

 

LAW AND DISCUSSION

 

Disposal of Case on Point of Law

According to my understanding of the law this court has jurisdiction to summarily dispose of a case on a point of law as provided for in the the High Court (Commercial Division) Rules, 2007. The authority for this proposition is Order 7 r. 11 of the High Court (Commercial Division) Rules, 2007 which reads:

(1)The Court may upon the application of a party or of its own motion determine any question of law or construction of any document arising in any cause or matter at any stage of the proceedings where it appears to the Court that -

(a) such question is suitable for determination without a full trial of the action, and

(b) such determination will finally determine (subject only to any possible appeal) the entire cause or matter or any claim or issue therein.

(2)Upon such determination the Court may dismiss the cause or matter or make such order or judgment as it thinks just.

(3)The Court shall not determine any question under this Order unless the parties have either -

(a) had an opportunity of being heard on the question, or

(b) consented to an order or judgment on such determination.

(4)Nothing in this Order shall limit the powers of the Court under Order 18, rule 19 of the Rules of the Supreme Court or any other provision of these rules”.

It is common knowledge that this provision is the same as Ord. 14A of the Rules of Supreme Court. As I see it, the applicable law under Ord. 14A would thus be of guidance to this court. In this regard it well to observe that at note 14A/2/8 RSC it is stipulated that the application under rule 1 may be included in a summons for summary judgment under O.14, or it may be made by a separate summons to come on and be heard together with a summons under O.14 and likewise it may be included in a summons for striking out any pleadings under O.18, r.19 or under the inherent jurisdiction of the Court. An instructive authoirity on the point is Crockfords Club Ltd v. Mehta4 and I shall be guided by this when dealing with the application before me. As stated earlier, the Applicant (Defendant) opposes the admissibility of the audit report. Indeed, the Applicant makes an application to this Court for an order and directions striking out the affidavits in support of the Re-amended Originating Summons and dismissing the Plaintiff’s matter. In addition, the Applicant (Defendant) wants this court to entering judgment in its favour on the grounds that the audit report, on which the Plaintiff’s claims appear to be based, is precluded in the proceedings or at all.

 

Should this court strike out any scandalous matter or affidavits?

As I see it, if one has to answer this question it is necessary that one reads what is stipulated in Ord. 41 r.6 RSC. The said Ord. 41 r.6 RSC provides that:

The Court may order to be struck out of any affidavit any matter which is scandalous, irrelevant or otherwise oppressive”.

I understand this rule as saying that an affidavit must be pertinent and material. If it is not then it may be ordered to be taken off the file if a scandalous matter is inserted5 or the scandalous matter may be expunged6. This rule empowers the Court to strike out any matter which is scandalous or otherwise oppressive so that matter which is scandalous can be struck out.7

As I understand it, the position at law is that the Court will strike out portions of affidavits dealing with negotiations for a settlement, if necessary upon a special application made for that purpose. Such matter ought not to be included in affidavits because it is inadmissible evidence.8

Further, it is trite law that, and it is well to point out that under our statutory law, the Court will strike out facts and matters deposed to in an affidavit which are inadmissible in evidence as being irrelevant or otherwise oppressive, e.g. references to the report of inspectors investigating the affairs of a company under the Companies Act 1985.9

The question that arises then is: should this court proceed to strike out any scandalous matter or affidavits? My answer is in the affirmative. As already seen, the audit report, being an embodiment of an out of court settlement discussion and being inadmissible thereby and by virtue of statute, is hereby found to be scandalous, vexatious and oppressive under the law. It is liable to and should be struck off. It is so ordered.

 

Scandalous, Vexatious or Oppressive Pleadings

The Applicant has raised issue with the Claimant’s Pleadings. It is said that the said pleadings are scandalous, vexatious and oppressive. Accordingly, it is urged on behalf of the Applicant that this Court should strike out the so called offending pleadings. What then are my views on this particular application? As I see it, Order 18 rule 19 of the Rules of Supreme Court is germane to in answering this question. The said Order 18 rule19 states:-

The Court may at any stage of the proceedings order to be struck out…any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that –

(1)(a)…………

(b)it is scandalous, frivolous or vexatious…”

(3)This rule shall, so far as applicable, apply to an originating summons … as if the summons ... were a pleading”.

The Court has therefore a general jurisdiction to expunge scandalous matter in any record or proceeding.10 As to scandalous affidavits, O.41, r.6 of the Rules of Supreme Court is instructive. Further, Selbourne LC in Christie v. Christie11 said this which is illuminating:-

"The sole question is whether the matter alleged to be scandalous would be admissible in evidence to show the truth of any allegation in the pleading which is material with reference to the relief prayed"

In the same way the court has jurisdiction under Ord.18 r.19(1)(b) to strike out frivolous or vexatious process. What then are “frivolous or vexatious process”? Order18/19/16 of the Rules of Supreme Court states that by these words are meant cases which are obviously frivolous or vexatious, or obviously unsustainable12.

Further, it is well to point out that Ord.18/19/26 deals with the courts inherent jurisdiction applicable in this area. It states that apart from all rules and Orders, and notwithstanding the addition of para.(1)(d), the Court has an inherent jurisdiction to stay all proceedings before it which are obviously frivolous or vexatious or an abuse of its process13. In such cases, it will strike out part of an indorsement of a writ14; or set aside service of it15; or will stay, or dismiss before the hearing of actions which it holds to be frivolous or vexatious16; and removes from its files any matter improperly placed thereon17. And this inherent jurisdiction is in no way affected or diminished by the existence of Ord.18 r.19 of the Rules of Supreme Court.

As shall be seen shortly, the Claimant’s action is based on pieces of evidence which the Court is barred from looking at by law. The action is for that reason observably frivolous or vexatious, or obviously unsustainable and need not occupy the court’s precious time.

 

Admissibility of Mediation Information

The Court has noted that the Applicant has raised issue with the Claimant’s purported wish to use some information that was obtained during mediation. The said information is the audit report the subject matter of this application. Is such information, obtained during mediation, admissible?

This area is regulated by High Court (Commercial Division)(Mandatory Mediation) Rules, 2007. I must say at the outset that I will have to give meaning to rule 10 of the said High Court (Commercial Division)(Mandatory Mediation) Rules, 2007. In saying this the Court is guided by the case of Malawi Revenue Authority v. Azam Transways18, where the Supreme Court has restated the law on statutory interpretation thus:

The fundamental rule of statutory interpretation is that courts must endeavour to give effect to the express intention of them that made the statute under consideration. If the words of the statute are in themselves precise and unambiguous no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case declaring the intention of the legislature”

Moreover, in NBS Bank v. Henry Mumba19 the Supreme Court confirmed the legal fact that where a statute uses the word “shall” as opposed to “may” there is no discretion to the court applying that statute.

Bearing this in mind, it is noteworthy that rule 10 not only makes mediation information confidential but also inadmissible in evidence. It reads:-

  1. All communications at a mediation session and the mediation notes and records of the Judge shall be deemed to be confidential

  2. Without derogation from the generality of subrule (1):-

  1. a record, report, settlement agreement, except where its disclosure is necessary for the purpose of implementation and enforcement, and any other documents required in the course of mediation shall be confidential

  2. .

  3. a party to a mediation shall not rely on (i)….(ii) statement made at the mediation session (iii) any information obtained during the mediation as evidence in court proceedings…” [emphasis supplied by me]

As it were, my understanding of this rule is that the language of this statute leaves no room for exceptions. Indeed, it leaves no opening for discretion on the part of this Court to admit some information obtained during mediation. It is all inclusive and covers all information obtained or required during mediation with an impervious mask. What does the Court make of the contents of the affidavit which contain information obtained during mediation that the Plaintiff wants to use herein? It is trite that mediation process is a formal attempt at an out of court settlement agreement. This is clear from rule 5 of the Mediation Rules which puts it as an underlying purpose and nature of mediation that the parties reach a mutually acceptable resolution of their dispute. This is contrary to the spirit of adversarial litigation in which parties would usually take diametrically opposite positions. It is found and concluded that mediation is an out of court settlement negotiation. Such negotiations cannot be relied upon in evidence unless the law is disregarded. This Court shall have none of it as my understanding is that our Mandatory Mediation Rules are not permissive respecting the status of any information or reports required or produced during mediation. The statute uses mandatory words “shall be confidential” and “shall not rely”. Without doubt therefore, the legal effect is mandatory. The information is confidential. It is so found.

Accordingly, on the proper construction of rule 10(2)(a) of the Mandatory Mediation Rules, the audit report is not to be disclosed. This confidentiality is premised on the regulating statute mentioned above. In the same way all other information obtained during mediation is confidential under the same subrule.

Equally, on the true construction of rule 10(2)(b) of the Mandatory Mediation Rules, neither the Plaintiff nor the Defendant, having gone through mediation which led to the production of the audit report, can rely on it in evidence. It is on account of its confidentiality and by statute inadmissible.

As stated somewhere in this ruling, the audit report, being an epitome of an out of court settlement discussion and being inadmissible thereby and by virtue of statute, is scandalous, vexatious and oppressive under the law. It is liable to be, and is hereby struck off.

Suitability of application for Disposal of case

In my view, and I think I have said this above, is that this application involves considering and deciding the effect of rule 10 of the Mandatory mediation rules on the sustainability of the Plaintiff’s case. As I see it, if the court comes to the conclusion that the Claimant’s key evidence in support of the claim for K11 971 684.80 is not usable in court, the whole of its case falls. It is therefore obvious that the determination of the admissibility of the evidence obtained during mediation is not only a question of law but will also dispose of the entire cause.

Turning to the instant case, I find that at the time of presenting their arguments both parties had been duly notified, by summons, of the appointment to hear this application. At most the court had afforded due opportunity to both parties to make representations on the application.

Accordingly, the application satisfies the criteria under Order 7 r. 11 of the High Court (Commercial Division) Rules. It will be dealt with under the said Order 7 r. 11 of the High Court (Commercial Division) Rules.

 

Matter should be dismissed

I think I have said this above that the audit report, being an epitome of an out of court settlement discussion is inadmissible thereby and by virtue of statute, is scandalous, vexatious and oppressive under the law. It has actually been struck off. The audit report is indeed the genesis of the Claimant’s action. Now, since the inadmissible information is struck off, the Plaintiff’s claim for K11, 971, 684.80 becomes obviously unsustainable. The claim has no foundation in fact. The claims, in the Re-amended Originating Summons, without any factual foundation become frivolous, vexatious and an abuse of the court process. They should be, and are hereby dismissed.

CONCLUSION AND DISPOSITION

In conclusion I wish to observe as follows. I am persuaded by the submissions of Counsel for the Applicant. It is correct that the Plaintiff’s action is based on pieces of evidence which the court is barred from looking at by law. The action is therefore unsustainable and need not occupy the court’s precious time. It should be, and is hereby, summarily dismissed.

Costs

As was stated in Aiden Shipping –v- Interbulk Ltd20 courts of first instance are well capable of exercising their discretion under statute in accordance with reason and justice. Further, the position at law is that costs of and incidental to all proceedings in the High Court shall be in the discretion of the High Court21.

Additionally, it is trite law that costs normally follow the event. An instructive authority is Order 62 of the Rules of Supreme Court and also the case of Chihana v Speaker of the National Assembly and Malawi Electoral Commission22 Indeed, this is echoed in the case of the State v OPC et al ex parte Chilumpha, where Justice Chipeta put it this way:-

To wind up I must pronounce a decision on costs…..The general rule guiding Courts on the question of costs is that costs follow the event..”

I have upheld the Applicant’s arguments in the application herein. Accordingly, the Plaintiff should be condemned in costs. It is so adjudged that the Plaintiff shall pay the costs of, and occasioned by, this application.

And the Plaintiff is hereby condemned to pay costs of, and occasioned by, these proceedings.

Pronounced in Chambers this 7th day of April, 2008 at the Commercial Division of the High Court of Malawi, Blantyre Registry.

 

 

 

F.E. Kapanda

JUDGE

1 per Buckley L.J, Re Jessop [1910] W N 128, a case in which the Court of Appeal refused to strike out extracts from letters marked “without prejudice”.

2 (1884) Cab. & Ell 215.

3 (2002) Ch. D judgment of 22nd March 2002 at page 20.

4 [1992] 1 W.L.R. 355; [1992] 2 All E.R. 748),

5 Rossage v. Rossage 1960] 1 W.L.R. 249; [1960] 1 All E.R. 600)

6 Warner v. Mosses [1881] W.N. 69; and see r.11).

7 Re J [1960] 1 W.L.R. 253).

8 Chocolade-fabriken Lindt & Sprungli A.G. v. Nestlè Co. Ltd [1978] R.P.C.287).

9Companies Act 1985, Sections 432 (2), 442 and 443;Savings & Investment Bank Ltd v. Gasco Investments (Netherlands) B.V.[1984] 1 W.L.R. 271; [1984] 1 All E.R. 296).

10Re Miller (1884) 54 L.J.Ch. 205).

11 (1873) L.R. 8 Ch.App. 499 at 503

12per Lindley L.J. in Att.-Gen. of Duchy of Lancaster v. L. & N. W. Ry [1892] 3 Ch. 274 at 277;

13 Reichel v. Magrath (1889) 14 App.Cas. 665).

14Huntly v. Gaskell (No. 1) [1905] 2 Ch. 656

15Watkins v. N. A. Land Co (1904) 20 T.L.R. 534

16 Metropolitan Bank v. Pooley (1885) 10 App.Cas. 210. See also Lawrance v. Norreys (1890) 15 App.Cas. 210 at 219; Haggard v. Pelicier Freres [1892] A.C. 68; The Manar [1903] P. 95 at 106; Boaler v. Power [1910] 2 K.B. 229, CA; Shackleton v. Swift [1913] 2 K.B. 304; Norman v. Mathews (1916) 85 L.J.K.B. 859);

17 Nixon v. Loundes [1909] 2 Ir.R. 1).

18 MSCA Civil Appeal 48 of 2007 (delivered on 22nd February 2008)

19 MSCA Civil Appeal No. 26 of 2005

20 [1986] A C 965 at 981

21 See S.30 Courts Act.

22 Misc Civ Cas. No. 2933 of 2005 (H.C) (Unrep.).

 

18