Mzanda v Elias (Civil Appeal 28 of 2017) [2018] MWHC 1279 (24 January 2018)

Okota Mzanda v. Miguel Andre Elias and Another Kenyatta Nyire nda, J. HI G ,-. ,·. ' , . -- ---. .. .._._...._·~- .. f - t..•8R '·~H ·,: ------.) A.i_)r:;,-v- J . . ! JUDICIARY IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL APPEAL NO. 28 OF 2017 BETWEEN OKOTA MZANDA ............................................................................ PLAINTIFF -AND- MIGUEL ANDRE ELIAS ................................................ DEFENDANT MR C. ASSAN ...................... ........................ ................... CLAIMANT CORAM: THE HONOURABLE JUSTICE KENYATTA NYIRENDA Plaintiff, present and self-represented Mr. Chipembere, of Counsel, for the Defendant Claimant, absent and unrepresented Mr. 0. Chitatu, Comi Clerk Kenyatta Nyirenda, J RULING This is an appeal by the Plaintiff from a decision of the learned Assistant Registrar made on 21 st November 2016 awarding the Claimant damages. The appeal is made pursuant to Order 58 of the Rules of the Supreme Court (RSC). In or around The issues for determination arise out of the following facts. December 2014, the Plaintiff entered into an agreement with the Defendant for the sale of a white Toyota Quantum Minibus registration number BLK 3089 Okota Mzanda v. Miguel Andre Elias and Another Kenyatta Nyirenda, J. [hereinafter referred to as the "White Toyota Minibus"] to the Defendant. The purchase price was K4,500,000.00 (purchase price). Upon entering into the agreement, the Defendant took possession of the White Toyota Minibus and undertook to pay the purchase price by 5th January 2015. The Defendant only paid K3,000,000.00, leaving a balance of Kl ,500,000.00 (the balance). By a Specially Endorsed Writ of summons issued on 6th March 2015, the Plaintiff commenced the action herein claiming against the Defendant payment of the balance, interest on the balance at the weekly rate prevailing in the money market from 5th January 2015 until date of payment and costs of this action. The parties agreed to have the matter settled through a consent judgment wherein the Defendant committed to settle the balance by end of March, 2015. However, the Defendant did not honour the court order: he only paid K500,000.00 and this lead to the issuance of a warrant of execution. When the Sheriff went to the Defendant's house to levy execution, he found the White Toyota Minibus but the Defendant was not available. When the Sheriff and his team went the second time to the Defendant's house in December, 2015, they found a red Toyota Quantum minibus [hereinafter referred to as the "Red Toyota Minibus"] which had exactly the same internal and external features like the White Toyota Minibus, for instance, a cracked dashboard and a loose platform with a towing hook. The Sheriff and his team believed that the Defendant had simply disguised the White Toyota Minibus as the Defendant runs a garage that reconditions car wrecks. Further, by this time the Defendant had branded his four motor vehicles, including the minibus with his trade name. And after the seizure of the Red Toyota Minibus, the Defendant promised that he would settle the balance of Kl ,000,000.00. However, he later started claiming that he had hired the Red Toyota Minibus from the Claimant for exclusive use from October, 2015 to January, 2016. It is on this basis that the Claimant claimed damages for loss of use or business for the red minibus due to the seizure by the Sheriffs. The learned Assistant Registrar found for the Claimant and awarded him the sum of K7,802.000. 00 plus costs. It is against this order that the Appellant seeks to appeal. Okota Mzanda v. M iguel Andre Elias and Another Kenyatta Nyirenda, J. The appeal has to fail in limine. The position at law is that appeals against the Registrar's orders on assessment of damages lie to the Supreme Court of Appeal and not a Judge in Chambers: see Dziko Nasiyaya v. Attorney General MSCA Civil Appeal No. 7 of 2012, unreported wherein the Supreme Court of Appeal held that: "An assessment of damages by the Registrar of the High Court determines the matter with finality at the High Co urt level. We think that the proper position of the law is that in the case of a matter dealt with the finality of the High Court level, an app eal will only lie to the Supreme Court of Appeal. It is for these reasons that we affirm the position stated in Mpinganiira v. Attornev General and Banda and Another v. Chunga. We are unable to accept the position in Anwar A. Gani v MY Chande. " In the premises, the appeal has to be dismissed. It is so ordered. Pronounced in Court this 24111 day of January 2018 at Blantyre in the Republic of Malawi. Kenyatta Nyirenda JUDGE 3