IN THE HIGH COURT OF MALAWI
COMMERCIAL CASE NUMBER 44 OF 2012
SURESTREAM PETROLEUM LIMITED APPLICANT/DEFENDANT
AYOADE OLATUNBOSUN ALAKIJA RESPONDENT/PLAINTIFF
CORAM: THE HONORABLE MR. JUSTICE L P CHIKOPA
D Njobvu Mr. of Counsel for the Applicant/ Defendants
G Mwale Mr. of Counsel for the Respondent/Plaintiff
C Njala, Court Clerk
The less said about the events and persons leading to/involved in this action and therefore this application the better. Suffice it for now to say that the plaintiff [now the respondent] brought an action against the applicant [now the defendant] claiming various declarations, an order and costs. It was in respect of services which she allegedly rendered to the applicant. The applicant has lodged with this Court an acknowledgement of service on it of the originating summons. But instead of filing papers to contest the plaintiff’s claim they have taken out this summons seeking to contend that this court has no jurisdiction to deal with the plaintiff’s action. If we may the exact words in the summons’ heading went as follows:
‘SUMMONS TO SET ASIDE AND/OR STAY PROCEEDINGS ON GROUNDS THAT COURT HAS NO JURISDICTION OVER MATTER [Under RSC O.12, r8]’
On its face this summons is said to be an application by the defendant:
‘for an order pursuant to Order 12, Rule 8 of the Rules of the Supreme Court setting aside and/or staying proceedings on the ground that the court has no jurisdiction over the Defendant nor over the subject matter of the claim nor the relief or remedy sought in the action since the agreement alleged by the Plaintiff as the basis of her claim (which agreement and claim is denied) was not made in Malawi’.[Sic]
The application is supported by an affidavit sworn by the applicant’s Counsel.
The respondent opposes the application. Her opposition is also supported by an affidavit sworn by her Counsel.
There are some issues of law which we feel are better discussed in the body of our opinion. For now we cannot however resist saying that this is still civil litigation. The general rule therefore is that he who alleges must prove their allegation on a balance of probabilities.
THE ISSUES AND A DISCUSSION THEREOF
Like we have intimated above the contention from the applicant is that this court has no jurisdiction to hear this matter. There was a particularization that this court actually has no jurisdiction not just over the matters in issue but the defendant and the remedies sought as well. The reason advanced was that the contract/agreement the purported basis of the action was not made in Malawi. The only question before us should therefore be whether or not this court has the said requisite jurisdiction. That would in so far as the issues are concerned be simple enough. Seems such is not the case however. In its arguments before this court both viva voce and in writing the applicant introduced a new angle to the question. Now they were not just saying that this court has no jurisdiction but rather that it was not a convenient forum for adjudicating the squabble between the parties. See page 9 bullet number 1 of the applicant’s skeleton arguments and second bullet of the applicant’s final written arguments which read:
‘The application before the court relates to whether or not the High Court (Commercial Division of Malawi) has jurisdiction (or more appropriately whether it is the more suitable Court) to hear the dispute between the Plaintiff …………. The Defendant is Surestream Petroleum Limited who are a company incorporated in the United Kingdom but registered an office in Malawi on 29 November 2011 …’ [Sic]
The question from the applicant is, in our judgment, now not just whether or not this Court has jurisdiction. Rather it is whether, notwithstanding the fact that it may have jurisdiction, it is a convenient forum in which to decide the dispute between the parties. But we doubt whether or not this court is a convenient forum is actually the only question. The question should also be asked, and correctly so in our view, whether the applicant having set out the issue in the summons and affidavit should now be allowed to vary it via the submissions. In other words whether the applicant having put the question as a straight forward whether or not this Court has jurisdiction should now be allowed to vary it to include the small matter of convenience of forum. It is not our intention to engage in pedantry in this opinion. While we therefore acknowledge the need to at all times abide by the rules of procedure including the need for parties to give advance notice to each other of not just the application but the grounds thereof we will not permit such rules to be more of an impediment/hindrance towards the timeous disposition of this application. See our views in Sochera & 5 Others v Council of the University of Mzuzu. That would do justice to neither the application nor the parties. It is better in our opinion that we endeavor to strike a balance between getting to the heart of the application [and getting it out of the way of a speedy trial] and ensuring that we do not operate in total disregard of the rules of procedure. As we see it therefore THE question still is whether or not this Court has jurisdiction to hear and determine this matter. We also think however that we can in answering that question also deal with the question, put by the applicant, of whether or not this Court is a convenient forum for dealing with the dispute between the parties herein. In a figure of speech we would if we so did be dealing with a different side of the same coin. In reality we would in our considered judgment be able to deal with both aspects of the applicant’s application, do justice to the application, the action and the parties without offending any rules of procedure.
Does This Court Have Jurisdiction Herein?
Fortunately for us this not the first time we are having to deal with the small matter of jurisdiction. The one instance that easily comes to mind is the case of The State v Secretary to the Treasury & Others ex parte Malawi Law Society. Therein we stated the obvious that the jurisdiction of the High Court of which this Court is part is a matter of the Constitution. Thus in section 108 of the Constitution the High Court has unlimited jurisdiction to hear and determine any matter. More than that it has the power to determine whether or not a matter is within its power to determine. On the face of the section therefore the High Court has the authority to hear any matter. Wherever it happened, by whom and the actors’ attributes are maybe irrelevances. We have taken the trouble of perusing the case of Sacranie t/a Textilewear v Ali  2MLR 245 decided by Mtambo J as he then was. He was of the view as we were in the Malawi Law Society case and as we are now that where a matter took place has no place in determining jurisdiction due to the wording of section 108 above-mentioned. If therefore the question were merely whether or not we have jurisdiction or, in the alternative, if the applicant’s questioning of our mandate was purely because the events in issue allegedly took place outside of Malawi or because the actors are non-Malawians we would have had little trouble, if any, in emphatically saying yes we have jurisdiction to hear and determine this matter and proceeded accordingly. It is clear however that this matter is not just a question of whether or not we have jurisdiction. Rather there is also the question as put by the applicant whether or not we are a convenient forum or as we have whether we should actually hear this matter.
Should This Court Hear and Determine This Matter?
The question posed by the applicant was initially whether or not this Court has jurisdiction. Later they varied it somewhat and included the question whether or not this Court was a convenient forum. On our part we wondered whether the applicant was at liberty to vary the question as put in the summons and the supporting affidavit. Strictly speaking we thought not. We might be accused of allowing the applicant to ambush the respondent if we answered otherwise. It however appeared to us, and we have concluded as such above, that it is quite possible to deal with the extra dimension to applicant’s question while at the same time dealing with the question whether or not this court has jurisdiction herein. If we go back to section 108 of the Constitution it is clear that matters of whether or not the High Court will hear and determine a matter are not answered by mere reference to the words any and all. There should also be reference to the fact that it is up to the Court itself to decide whether it should assume jurisdiction in a particular matter. We do not therefore find it impossible to envisage a situation where the High Court would, despite the words any and all still find it inappropriate for it to assume jurisdiction in a particular matter. The question should not in our judgment therefore be one, as put by the applicant, of convenience or suitability but rather of appropriateness. Suitability is a bit too close to issues of competence and we do not, unless we have got the applicant hopelessly wrongly, think that the applicant is questioning this Court’s competence to deal with the matter before us. Convenience on the other hand seems a tad too casual to be associated with litigation. More than that and maybe more seriously we think convenience should be one of the considerations towards deciding whether or not this is an appropriate forum rather than a standalone determinant of whether or not a court has jurisdiction. Getting back to the concerns raised by the applicant therefore the question is not whether this Court is a convenient forum but rather whether in the circumstances of this case it is appropriate that this Court hears and determines the plaintiff’s. We should however and as we try to resolve this question also clear some other points. The applicant contended that it was for the respondent to prove that this was an appropriate forum. That cannot be. The laws of this jurisdiction are very clear in our view in so far as burden and standard of proof is concerned. The burden is on he who alleges to prove their case on a balance of probabilities. Applied to the instant case it is trite that the High Court has jurisdiction over any and all matters. Even the applicant does not dispute this. The applicant for some reason however thinks that this is not an appropriate forum to try the plaintiff’s case. It cannot be, in our judgment, that the respondent should then be expected to show that this is an appropriate forum or that the English Courts are not the appropriate forum. That would be going against the very basic tenets of our civil jurisprudence. The law has always been and is that he who alleges must prove on a balance of probabilities. In this case like in all others the position at law is that it is the applicant who must show on a balance of probabilities that notwithstanding the fact that this Court has jurisdiction it is in the circumstances not the appropriate forum. The question being has the applicant done that?
In the summons the applicant says this Court has no jurisdiction essentially because the alleged agreement the genesis of these proceedings took place outside Malawi. In the affidavit especially beginning from paragraph 3 the applicant goes on to say that this Court has no jurisdiction because both parties are not resident within jurisdiction. The respondent according to the applicant is a Fijian national of Nigerian extraction holding a British passport. The applicant is a limited company incorporated in London but registered as an external company in Malawi from November 29, 2011. The agreement in issue according to the applicant was concluded over the airwaves from outside Malawi before the applicant had any presence in Malawi. We will repeat ourselves. There is a difference in our view between contending that these courts do not have or cannot have jurisdiction, saying that they should not have jurisdiction and opining that perhaps it is not appropriate that this matter be dealt with in these courts. As we have said above the mere facts that the parties are from out of Malawi or that the facts leading to the suit took place out of Malawi does not by themselves mean that these courts do not or cannot have jurisdiction to hear such matter. They in our judgment can have in terms of our constitution. The Malawi Law Society and Sacranie cases are clear on that score. As to whether they should actually hear the matter which is altogether a different questions we with respect think that the applicant has misapprehended the law and the facts. They seem to have proceeded on the fact that because the parties are foreign or that the events in issue took place outside of Malawi then this matter is beyond our jurisdiction. It is not. Certainly not in the instant case. If we might say so it appears that the applicant is for some reason glossing over the allegation that the contract was performed in Malawi. If therefore we do not have jurisdiction merely because the agreement was arrived at out of jurisdiction will we assume jurisdiction over the execution thereof or such part of it as took place in Malawi? We doubt. It would lead to absurdities we think. In so far as therefore the applicant thinks we are not the appropriate tribunal merely because the parties are foreign and the events took place out of jurisdiction we are not able to agree with them.
Then the applicant contended that the respondent having sent her invoice to the defendant in the United Kingdom she should follow it there. That she should not sue in Malawi. More so considering that the activities in respect of whom payment is being sought took place before the applicant had a presence in Malawi. The applicant is blowing hot and cold in our view. The applicant had no presence in Malawi on the date of the invoice according to the applicant. Where else did it expect the respondent to send the invoice if not to the applicant’s United Kingdom address? To Malawi? Maybe not. And now that the applicant has some presence in Malawi does the applicant still find it unreasonable that she has sued here if in her thinking the activities for which she seeks payment took place in Malawi? Maybe not as well.
The applicant also suggested that because the agreement in issue was made in the United Kingdom the matter would have to be decided under English law which the Malawi courts would not be best suited to handle. The question of where the agreement was entered into is not a matter we should be deciding now. If it does come up as an issue it will only be decided when the matter comes up for decision on the merits which is not now. The applicant was jumping the gun a bit when it therefore proceeded to base its argument on the assumed fact that the agreement was made in the United Kingdom and would be determined in accordance with English law. But even if such were the case the applicant seems to have forgotten that foreign law if English law of contract is indeed foreign law is a matter of fact up for proof. Is the applicant therefore certain that this court would not be able to deal with it?
Lastly the appellant suggested that the suit being for a payment in United States Dollars the suit could not have been instituted in Malawi, that if any agreement existed between the parties the same would be illegal the respondent having quoted in foreign currency and also that the mode of commencement was inappropriate. And lest we accused of not addressing all of the applicant’s concerns there was in our view a mention, if only tangential, of the fact that the respondent has no known assets in Malawi suggesting, we think, that there was no security for costs. The applicant was clutching at straws we think. If the contention is that she cannot sue in Malawi because she is demanding United States Dollars how does the applicant come to the conclusion that she should then sue in the United Kingdom? We have always thought the American Dollar is not native to the United Kingdom and that perhaps in the same way she cannot sue in Malawi because the American Dollar is foreign to Malawi she should not also sue in the United Kingdom. As to the alleged illegality and/or impropriety of the mode of commencement those with respect are not matters having anything to do with a lack of jurisdiction. Much the same can be said about the perceived lack of a security for costs. If the applicant feels there is no security for costs and the same is required the way forward is not to bring in issues of jurisdiction. It is to make an application for security for costs.
The plaintiff’s claim is dismissed in its entirety. There is no ground for us to conclude that we have no jurisdiction. There is also no proper reason why we should not hear and determine this matter. Indeed to such suggest that this is an inappropriate forum. The applicant, now that it will revert to being a defendant, will [if it so wishes] file its affidavit[s] in opposition herein within 21 days from the date hereof. Fourteen days thereafter the parties will file skeleton arguments complete with authorities and copies thereof after which we will advise them of the date of hearing. The parties will also indicate at least ten days before date of hearing whether or not they will cross-examine each other’s witness[es] on their affidavits.
The respondent will have the costs of this application.
Dated this September 13, 2012.
L P Chikopa