A.A. Mirza General Dealers v Ami (MW) Ltd (99 of 1999) (99 of 1999) [2008] MWHC 118 (13 June 2008);

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IN THE HIGH COURT OF MALAWI

LILONGWE DISTRICT REGISTRY

CIVIL CASE NO. 99 OF 1999


BETWEEN


A.A. MIRZA GENERAL DEALERS ……………………………………………………… APPLICANT


AND


AMI (MW) LTD ………………………………………………………………………………RESPONDENT



CORAM : CHOMBO, J.


: Theu, Counsel for the Applicant

: Njobvu, Counsel for the Respondent

: Gonaulinji, Court Interpreter


RULING


This is an application for amendment of judgment by the respondent made under Order 20 Rule 11 of the Rules of Supreme Court. The application arose from a ruling of the Court of 4th December 2007 in which the Court held that the respondent, who had been sued for negligence by the applicant was the wrong party. When it came to the issue of costs, the Court ordered that “costs be in the cause”. The respondent now hold that since the effect of the ruling was an outright dismissal of the applicant’s application the Court must have erred in framing its order in that fashion. The respondent filed affidavit in support of the application.


In his verbal response to the respondent’s submissions, the applicant informed Court that he had not been served with the summons and every effort, including sending the same by email failed. Counsel was however willing that the matter proceed that notwithstanding. The respondent submitted that under Order 20 rule 11 the Court has jurisdiction to correct clerical mistakes, ambiguities, omissions or accidental mistakes in judgments without the matter being treated as an appeal. Apart from pointing out some matters that are contained in their appeal to the higher Court, the applicant was basically in agreement that there is need for the court to make a more direct order as to the costs. The applicant asked for justification of whatever order the Court will make on the costs.


In order to determine which party should have costs and to justify the awarding of such costs it will be necessary to delve briefly into the history of the matter. The applicant in this case had, after purchasing a variety of goods in the East, contracted A.M.I. International for the haulage of the said goods. The latter in returned contracted the respondent for carriage of the same to Malawi. The hauliers for the respondent were involved in an accident en route to Malawi and the applicant sued the respondent for negligence. When the matter came before the Registrar it was found that the respondent was the right party to be sued. The respondent appealed and this Court found that the respondent, was the wrong party.


In awarding costs the Court ordered that “costs be in the cause”, which is admittedly a wrong order as, in upholding the respondent’s appeal, the matter has come to the end of the road. There will not be, save for the applicant’s appeal, any other proceedings before Court by the respondent. There is need therefore for Court to correct the error or clarify the ambiguity; thus the application. The general principle in awarding costs are that, (a) the costs payable by one party to another are in the discretion of the court. (b) the unsuccessful party will be ordered to pay the costs of the successful party” ‘or as popularly known as ‘costs follow the event;1


Case law has successfully shown that in normal circumstances a successful party was entitled to costs against the loser unless the Court, in its own discretion, orders otherwise. Buckley, L.J. in Scherer v Counting Instruments Ltd2 laid down the following:


  1. the normal rule is that costs follow the event. The party who turns out to have unjustifiably either brought another party before Court, or given another party cause to have recourse to the Court to obtain his rights is required to recompense that other party in costs;

  2. the judge has, under the Supreme Court Act 1981, section 51, an unlimited discretion to make what order as to costs he considers that the justice of the case requires:

  3. Consequently a successful party has a reasonable expectation of obtaining an order for his costs to be paid by the opposing party, but has no right to such an order, for it depends upon the exercise of the Court’s discretion.

  4. This discretion is not to be exercised arbitrary; it must be exercised judicially, that is to say, in accordance with established principles and in relation to the facts of the case.

  5. The discretion can not be well exercised unless there are relevant grounds for its exercise, for its exercise without grounds can not be a proper exercise of the judge’s function.

  6. The grounds must be connected with the case. This may extend to any matter relating to the litigation, but no further. In relation to an interim application ‘the case’ is restricted to the application, and does not extend to the whole of the proceedings.

  7. If a party invokes the jurisdiction of the Court to grant him some discretionary relief and establishes the basic grounds therefore but the relief sought is denied in the exercise of discretion ----- the opposing party may properly be ordered to pay his costs. But where the party who invokes the Court’s jurisdiction wholly fails to establish one or more of the ingredients necessary to entitle him to the relief claimed, whether discretionary or not, it is difficult to envisage a ground on which the opposing party could properly be ordered to pay his costs. [Underlining supplied for emphasis].


It must therefore be acknowledged that the Court made a glaring error in ordering that “Costs be in the cause” and secondly that the principle of how costs are to be awarded is very clear – to the successful party unless there are good grounds for ordering otherwise. And in accordance with point (f) of Buckley, L.J. the grounds must be connected to the litigation in court and no further.


The appellant’s counsel attempted to demonstrate that because the Court erred in basing its determination on contract and not negligence there is high probability that his appeal to the higher court will succeed. That notwithstanding there was no legal justification advanced by the appellant and no matter how high the probability of winning the appeal may be there is no other basis for not allowing the successful party from being awarded the costs at the end of the present proceedings.


Having the jurisdiction, I now amend the order of “costs in the cause” to be “costs be awarded to the respondent”.


MADE in Chambers this 13th day of June, 2008.




E.J. Chombo

J U D G E





1 Blackstone’s Civil Practice, 2001, Blackstone Press Limited p 700




2 [1986] 1 WLR 615



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