Mukakama & Ors. v Engil & Ors. (Civil Cause 268 of 2015) [2018] MWHC 34 (23 April 2018)

Blaziyo Mukakama & 41 Others v. Mota Engil & Roads Authority Kenyatta Nyirenda, J. JUDICIARY IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 268 OF 2015 BETWEEN BLAZIYO MUKAKAMA AND 41 OTHERS............................. PLAINTIFFS MOTA ENGIL........................................................................ 1st DEFENDANT AND ROADS AUTHORITY...........................................................2nd DEFENDANT CORAM: THE HONOURABLE JUSTICE KENYATTA NYIRENDA M r. Ulaya, o f Counsel, for the Plaintiffs M r. Chagoma, o f Counsel, fo r the 1st Defendant M r. Sitima, o f Counsel, for the 2nd Defendant Mrs. J. Chilimapunga, Court Clerk ___________________________ JUDGEMENT___________________________ Kenyatta Nyirenda, J. Introduction The Plaintiffs in this case are claim ing damages in form o f repair costs. The claims are based on an allegation that in or around 2009, their respective houses were damaged as a result o f road construction works that w ere carried out by the 1st Defendant with the authority o f the 2nd Defendant. Th ey allege that the damage to their houses was caused through negligence o f the tw o Defendants. The Defendants deny being negligent. The 2nd Defendant also seeks to rely on the Lim itation A ct. It is also the case o f the 2nd Defendant that it cannot be held liable for the negligence, i f any, o f the 1st Defendant since the 1st Defendant was engaged as an independent contractor. It might not be out o f place to mention that this case was initially com m enced in the C h ie f Resident M agistrate’ s Court sitting at Blantyre (lo w e r court) in 2014 l Blaziyo Mukakama & 41 Others v. Mota Engil & Roads Authority Kenyatta Nyirenda, J. against the 1st Defendant only. On 3 1st July 2015, the case was transferred from the low er court to this Court. On 2nd February 2016, the Plaintiffs w ere granted an order adding the 2nd Defendant to the case. Pleadings The Statement o f Claim was amended and then further amended. Th e R e-A m ended Statement o f Claim is couched in the fo llo w in g terms: “1. The Plaintiffs are owners o f residential houses along or near the Chiringa- Migowi-Chiradzulu road and Migowe-Phalombe Spur. 2. 3. 4. The defendant is a Limited Company in the business o f road construction The second defendant is a Highway Authority responsible fo r the construction, care and maintenance o f public roads in Malawi. In or around the year 2009, the first defendant with the authority o f the second defendant was carrying out a road construction project on the Chiringa-Migowi- Chiradzulu road and Migowi-Phalombe Spur, when the plaintiffs houses were damaged due to the use o f heavy machinery that caused shaking o f the ground and walls o f the houses. 5. The plaintiffs plead that the damage to their houses resulted from the negligence o f the defendants. PARTIC ULARS O F N E G LIG E N C E Proceeding with the construction o f the road without assessing the risk o f damage to the plaintiffs ’ houses. Failing to have regard fo r the safety o f the plaintiffs ’ houses. Res ipsa loquitor. PARTICULARS O F DAM AG E The plaintiffs ’ houses developed cracks and other forms o f damage. The Plaintiffs will provide pictures o f the damaged houses during trial or at the request o f the defendants. a) b) c) a) b) 6. And the plaintiffs claim damages in form o f repair costs to be assessed. ” B y its R e-A m ended D efence, the 1st Defendant denies liability. The R e-A m ended D efence by the 1st Defendant provides as follow s: Blaziyo Mukakama & 41 Others v. Mota Engil & Roads Authority Kenyatta Nyirenda, J. “1. 2. 3. The 1st defendant does not admit the contents o f paragraph 1 o f the Amended Statement o f Claim. The 1st Defendant admits paragraphs 2 and 3 o f the Amended Statement o f Claim. The 1st defendant refers to paragraph 4 o f the Amended Statement o f Claim and:- 3.1 admits that the road construction or upgrading took place in 2009; 3.2 3.3 pleads that it upgraded the road as an agent or contractor, with authority and supervision, o f the 2nd defendant as employer pleads that the Chiringa-Migowi-Chiradzulu road and the Migowi- Phalombe spur it upgraded are secondary roads; 3.4 denies that the alleged damage was suffered in or around 2009 or at all; 3.5 denies that the machinery caused shaking o f the ground walls o f the plaintiffs’ houses as alleged or at all and puts each o f the plaintiffs to strict proof. The 1st Defendant refers to paragraph 5(a) and (b) o f the Amended Statement o f Claim and denies that it was negligent as alleged and particularized therein or at all and puts each o f the plaintiffs to strict p roo f thereof. The 1st defendant pleads and shall at trial demonstrate that the alleged damage was wholly caused or substantially contributed to by negligence o f each o f the plaintiffs themselves. Particulars o f negligence 5.1 5.2 5.3 building residential houses within and/or extremely close to the road reserve when they knew or ought to have known that it is by law prohibited to do so; building residential houses within and/or extremely near the road reserve in utter or wanton disregard o f their personal proprietary safety; employing poor workmanship, and/or comprised quality o f building materials; 5.4 failure to maintain the houses or that the destruction was due to age. The 1st defendant refers to paragraph 5 (c) o f the Amended Statement o f Claim and denies that the maxim res ipsa loquitur is applicable to the facts and circumstances o f the present case. The 1st Defendant denies that the Plaintiffs suffered damage or loss as alleged and particularized in paragraph 5(a) and (b) o f the Amended Statement o f Claim or at all and puts each o f the plaintiffs to strict p roo f thereof. 4. 5. 6. 7. Blaziyo Mukakama & 41 Others v. Mota Engil & Roads Authority Kenyatta Nyirenda, J. 8. The 1st defendant denies that the p laintiffs are entitled to the r e lie f they seek o r cla im in pa ra gra ph 6 o f the Am ended Statement o f C la im o r at all. ” On its part, the 2nd Defendant admits paragraphs 2 and 3 o f the R e-A m ended Statement o f Claim. Th e 1st Defendant further admits that it was in volved in the construction o f the said roads but denies (a ) that the Pla in tiffs’ houses were damaged as a result o f the said construction, (b ) being negligent in the manner particularized in paragraph 5 o f the R e-A m ended Statement o f Claim and (c ) that the m axim res ipsa loquitur is applicable to the facts o f the present case. The 2nd Defendant also pleads that the respective claims by the Plaintiffs are statute-barred in that they arose in 2009 but the Plaintiffs only com m enced the present proceedings against the 2nd Defendant on 2nd February 2016. The 2nd Defendant further pleads that it engaged the 1st Defendant as an independent contractor and states that, on that account, the 2nd Defendant cannot be held liable for the negligence, w hich is not admitted, o f the 1st Defendant. Burden and Standard o f P r o o f The burden o f p r o o f lies upon the party w ho substantially asserts the affirm ative o f the issue. This burden o f p r o o f is fixed at the beginning o f the trial by the state o f the pleadings and it is settled as a question o f law, rem aining unchanged throughout the trial exactly where pleadings place it, and never shifting. The rule means that where a given allegation, whether affirm ative or negative, form s an essential part o f a party’ s case, the p ro o f o f such allegation rests on the said party: see Phipson on Evidence (16th Edition), 127, Commercial Bank of Malawi v. Mhango [2002-2003] MLR 43 (SCA) and Milner v. Minister of Pensions [1974] 2 All E. R. 372. It is also w ell settled that the standard o f p r o o f in c iv il cases is on balance o f probabilities. A balance o f probabilities sim ply means that a Court is entitled to say that, based on the evidence led before it, it is o f the v ie w that “ it is m ore p rob a b le than n o t” that the fact asserted is made out: see Msachi v. Attorney General [1991] 14 MLR 287. Evidence The Pla in tiffs’ side was represented by six witnesses, nam ely, Patrick Kam oto (P W 1 ), M irriam M akw in ja (P W 2 ), Fresh M aloti (P W 3 ), Jonathan G oliati (P W 4 ) Paul T ito (P W 5 ) and M ary W ilson (P W 6 ). PW 1 adopted his witness statement as his evidence in chief. The evidence was as follow s: Blaziyo Mukakama & 41 Others v. Mota Engil & Roads Authority Kenyatta Nyirenda, J. “ 6. I a m one o f the pla in tiffs in this matter. 7. I reside in my own house at P h od ogom a village, T/A Nazombe, Phalom be. 8. In o r a rou n d the year, 2009, M o ta E n g il were con stru ctin g the C h irin g a -M ig o w i- Chiradzulu ro a d and M ig ow i-P h a lom b e spur. 9. The construction w ork involved the use o f heavy machinery. 10. The use o f heavy m achinery was causing vibrations in the g rou n d and also shaking o f walls o f my house and my neighbours. 11. D ue to the constant shaking o f the walls o f my house and those o f my neighbours, my house and those o f my neighbours were damaged. 12. I attach a copy o f the p ictu re o f my house show ing the damage marked M T M 1 . 13. As a g ro u p we lodged a com pla in t to M o ta -E n g il who p ro m is ed to compensate us f o r the damages caused to o u r houses. 14. M o ta -e n g il officia ls on two occasions visited our area to assess the damage caused to o u r houses but has not p a id us any com pensation up to date. 15. I w ould like this co u rt to ord er M o ta -E n g il to pay me and my g ro u p com pensation in fo r m o f rep a ir costs. I attach and exhibit hereto a copy o f a quotation on the rep a ir costs to my house that I g o t fr o m a bu ild er m arked M T M 2 . ’’ P W 2 , P W 3 , P W 4 , P W 5 and P W 6 adopted their respective witness statements and each one o f them tendered pictures o f his or her damaged house and quotations for repair costs. It has to be mentioned upfront that the Defendants objected to the tendering o f the photos and quotations as to the truth o f their contents and the objection was sustained b y the Court on the basis that the authors th ereo f w ere not called to testify on the documents. In short, the documents offen ded the rule against documentary hearsay. A perusal o f the witness statements o f these witnesses shows that the evidence therein is in material respects very much similar to that o f P W 1 . In the circumstances, I do not deem it prudent to regurgitate their respective evidence in chief. In cross-examination, PW 1 stated that he could not show the damage on the picture. H e said the Plaintiffs lodged their complaint in 2012 but he could not recall the 1st D efendant’ s o fficia l to w hom the complaint was lodged. H e stated that officials from the 1st Defendant came to inspect the houses in 2012 and 2014. He Blaziyo Mukakama & 41 Others v. Mota Engil & Roads Authority Kenyatta Nyirenda, J. V said the road construction project started in 2009. H e could not recall the tim e the project ended. PW 1 also said that his house is situated between 10-15metres aw ay from the road. PW 1 further told the Court that they sued both Defendants. H e said the complaint was lodged w ith the 1st Defendant because it was the one w hich was actually constructing the road and the 2nd Defendant was w orking with the 1st Defendant. H e said the w rong com m itted by the 2nd Defendant was that it has not compensated them for the damage to their houses. PW 1 conceded that from the picture w hich he tendered, cracks could not be seen. H e stated that the pictures o f his house were taken by M r Banda. There was no re-exam ination o f P W 1. During her cross-examination, P W 2 failed to identify the picture referred to in his witness statement. She also said that she did not know the person w ho took the picture o f her house. She said that the Plaintiffs had com plained to the District Com m issioner only. She could not remem ber when the complaint was lodged. She said they sued those w ho destroyed their houses, those that constructed the road. P W 2 was not re-examined. The testimony o f the P W 3 during cross-examination was as follow s. H e said the house in the picture was his. H e pointed to the Court a crack on the house. H e said the crack on the picture appears as a w hite line. H e stated that his house is close to the road, about 15 metres from the road. H e said that he lodged his com plaint with the District Comm issioner. H e said he sued the 2nd Defendant because he had heard that i f things are destroyed, the 2nd Defendant pays fo r them. H e told the Court that he had heard this from o fficia ls that visited the Plaintiffs. The officia ls came from the 2nd Defendant, 1st Defendant and the District Comm issioner. W hen asked w hy they did not sue the District Comm issioner, she replied that the officia ls told them that compensation was to be made by the 2nd Defendant. PW 3 was not asked any question in re-examination. In cross-examination o f P W 4 , he said that the road construction project started in 2009 and it ended in 2011. H e told the Court that his house was about 5 metres aw ay from the road. H e said that the Plaintiffs lodged their com plaint in 2012. H e stated that the pictures o f his house w ere taken in 2013 by M r. Banda. There was no re-examination o f P W 4 . Blaziyo Mukakama & 41 Others v. Mota Engil & Roads Authority Kenyatta Nyirenda, J. P W 5 stated that the mark appearing on the last page o f the witness statement was his signature although the signature was not in his name. H e said he had signed it on 26th October 2015. H e told the Court that the witness statement had no attachment at the tim e he had signed it. H e also told the Court that there was attachment to his witness statement when he signed it. P W 5 was not re-examined. P W 6 stated the fo llo w in g during her cross-examination. H er house is 15-20 metres away from the road. H er house developed cracks due to the construction. The Plaintiffs com plained to the 1st and 2nd Defendants in 2014. She confirm ed that the contents o f paragraph 15 o f her witness statement w ere true. She said it was Mr. Banda w ho took the picture but she does not know where M r. Banda works. There was no re-examination o f PW 6. The 1st Defendant had one witness by the name o f D avid Chise (D W 1 ). D W 1 adopted his witness statement and the relevant part is in the fo llo w in g terms: “ 5. ... I am a c iv il E n gineer by profession. I am a Site A gen t f o r M o ta Engil, a c iv il engin eerin g contractor. I have over 9 years experience in c iv il engineering work. 6. I was a M easurem ent E ngineer in 2009 when M o ta E n g il was ca rry in g ou t the upgrading p ro je c t o f the C h rin g a -M ig ow i-C h ira d zu lo ro a d and the M ig o w i- Phalom be spur ( “ the ro a d ”). 7. ... The works on the ro a d were being ca rrie d out by M o ta -E n g il under the authority and supervision o f the Roads A u th ority as employer. 8. ... When bid ding f o r the works, the assumption by M o ta E n g il was that a ll risks and environm ental im pact assessments in respect o f the works had already been done by the Roads A u th ority since the p ra ctice in ro a d construction industry is that such assessments are done by the Em ployers before aw arding contracts. 9. The works undertaken by M o ta E n g il as C on tra cto r on the ro a d included mass earthworks, pavem ent layers, surfacing, bridge and box cu lvert construction, p ip e cu lvert installation, drainage embankment p ro te ctio n ju s t to m ention a few. 10. The works on the ro a d were based on standards o r specifications set by the Roads A u th ority as Em ployer. It is the same standards that were used to determ ine the type o f equipm ent that was to be used by M o ta E n g il as C on tra cto r on the ro a d works. In oth er words, M o ta -E n g il had used a ll the requisite equipm ent f o r the ro a d works to the satisfaction o f the em p lo y er’s specifications. The equipm ent that we used included tipper trucks, graders, ro lle rs and dozzers. The la tera l effect o f the vibra tion o f the m achinery used, especially the rollers, when a ch ievin g maximum re q u ire d com pa ction is com pletely dissipated within the roa d reserves. Blaziyo Mukakama & 41 Others v. Mota Engil & Roads Authority Kenyatta Nyirenda, J. 11. The requ irem en t in ro a d construction industry is that buildings and/or residential houses should n ot be constructed very near o r within any ro a d reserve. It is the o b lig a tio n o f the Roads Authority to determine ro a d reserves, set ro a d reserve marks and oversee that buildings o r residential houses are not erected very close to o r within ro a d reserves. 12. F o r main (M ) roads, the reserve area spuns to a re g io n o f 30 m on each side fro m the centreline o f the (M ) road. The ro a d c o rrid o r f o r an M ro a d is therefore 60 m. However, f o r secondary (D ) roads, the reserve area stretches to 18m each side fr o m the (S ) r o a d ’s centreline and the (S ) r o a d ’s c o rrid o r w ould be 36m. The C h irin g a -M ig ow i-C h a ra d zu lo roa d and M ig o w i-P h a lo m b e spur on which M o ta - E n g il ca rrie d out the ro a d upgrading works are a ll secondary roads. 13. The works in respect o f the ro a d were com pleted in 2009. M o ta E n g il never received any com pla in t in rela tion to the 2009 ro a d works fr o m any member o f the com m unities surrounding the ro a d d uring the upgrading o f the ro a d o r soon after its com pletion. This is why M o ta E n g il was surprised when the co u rt summons was served on it in O ctob er 2014. It was soon after receivin g a cou rt summons in this matter, M o ta E n g il conducted its own investigations which established that most o f the plaintiffs ’ houses are very close to and/or within the reserve area o f the road. 14. I therefore believe that the damage, i f at a ll caused by the equipments ’ vibrations, co u ld not be anticipated by M o ta -E n g il since it had occu p ied the p ro je c t site and ca rrie d out the works after the ro a d reserve o r w orking c o rrid o r had already been determ ined by the Roads A u th ority as its employer. 15. The 2008 A greem en t o r C on tra ct (D C ) states, a m on g other things, that the risk of, o r loss, o r damage to p ro p erty which are due to use o r occu pa tion o f the site by the works f o r the pu rpose o f the works, which is the unavoidable result o f the works, are the E m p lo y e r’s risks. I, therefore believe that the claim s in respect o f damage to the pla in tiffs ’ residential houses, i f p ro ve d that they were caused by the equipm ent vibrations, w ould qualify as the unavoidable result o f the works on the road. 16. I also believes the damage o f the nature like those a lleged by the plaintiffs ’ houses in com m unities sim ila r to that o f the Plaintiffs is usually experienced due to use o f p o o r workmanship, com prom ised quality o f b u ild in g m aterials and o r due to o ld age. ” D W 1 tendered the Contract Agreem ent and it was marked as Exhibit D 1 . In cross-examination by Counsel Ulaya, D W 1 agreed that the construction works in volved use o f heavy machinery and that heavy machinery causes vibrations to houses or buildings close to the machinery. H e stated that there is a requirement for buildings not to be constructed within or near road reserves. Blaziyo Mukakama & 41 Others v. Mota Engil & Roads Authority Kenyatta Nyirenda, J. D W 1 stated that where houses are within the road reserve and have to be demolished, there is a due process o f assessment and compensation. H e agreed that the reason the houses are to be dem olished is because they w ou ld be damaged i f they remain there. H e explained that i f houses are found within the road reserve, they inform the client before proceeding with the construction. D W 1 insisted that that the 1st Defendant carried out investigations after it was served with summons. H e confirm ed that some houses had cracks which he believed had developed because the houses w ere within the road reserve. H e also said that it was possible that the cracks came about due to other causes such as poor m ixing o f building materials, use o f inferior building materials or old age. D W 1 concluded by stating that when com m encing the road construction in 2009, the 1st Defendant assumed that the 2nd Defendant had carried out all the necessary risks assessment pertaining to the area. During cross-examination by Counsel Sitima, D W 1 stated that the 1st Defendant was a contractor and that the contract between M ota E n gil and Roads Authority (Exhibit D l ) was not an em ploym ent contract. H e confirm ed that road reserves are set by law and the Plaintiffs w ere breaking the law by building their houses within the road reserve. Regarding vibrations, D W 1 told the Court that effects o f vibrations were com pletely dissipated within the road reserve. H e said that in terms o f clause 11 (a ) o f Exhibit D l, the 1st Defendant cannot be held liable fo r damage to houses o f the Plaintiffs. In re-examination by Counsel Chagoma, D W 1 agreed that 1st Defendant encountered occasional obstructions and these w ere being reported to the 2nd Defendant during progress site meetings. H e concluded by stating that based on Exhibit D l , the 1st Defendant could only stop the works on the road on instructions by the project manager. The 2nd Defendant paraded one witness, namely, A n d y K o lo k o (D W 2 ). D W 2 adopted his witness statement and the relevant part th ereof provides as fo llow s: I am an adult M alaw ian and I am a C iv il E n gin eer by profession. 2. I am cu rrently w orking f o r E le ctricity Supply C o rp o ra tio n o f M a la w i but up to 25th July, 2014 Iw a s w orking f o r the 2nd Defendant as a C on stru ction Engineer. Blaziyo Mukakama & 41 Others v. Mota Engil & Roads Authority Kenyatta Nyirenda, J. 3. P a rt o f my duties were to oversee and supervise the construction o f the C h irin g a - M igow i-C h ira d zu lu R oad which is designated as a Secondary Road. 4. D ue to the construction o f the said road, some p rop erties near the ro a d were to be dem olished and these p ro p ertie s were earm arked and their owners duly compensated. 5. The pu rpose o f the com pensation was to enable the owners o f the p roperties a cquire sim ila r p rop erties away fr o m the road. 6. Secondary roads have a ro a d reserve o f 30 metres, 15 metres fr o m the centre o f the road. The C on tra ctor is instructed to ca rry out his works within that roa d reserve. 7. I f the co n tra ctor goes beyond the ro a d reserve o r within the ro a d reserve negligently ca rries out the works, and causes damage to others, that remains the responsibility o f the con tra ctor because he is an independent contractor. 8. I f what the Pla in tiffs are saying is true that their p ro p ertie s were damaged because o f the negligence o f the 1st Defendant, then the 2nd Defendant cannot be held lia ble f o r the negligence o f the 1st defendant as he is an independent co n tra ctor who professed to be com petent to ca rry out the works. 9. The Pla in tiffs ’ claim s were b rought against the 2nd D efendant on 2nd February 2016 after the expiration o f 6 years fr o m the date they arose. I a m inform ed by the 2nd D efen d a n t’s lawyers that the claim s are statute barred. ” In cross-examination by Counsel Ulaya, D W 2 testified that he was not aware that the 1st Defendant had reported to the 2nd Defendant o f the presence o f houses within the road reserve. H e said i f houses remained within the road reserve and got damaged, that w ou ld be the responsibility o f the 1st Defendant since the 2nd Defendant set the w orkin g corridor and handed it o ver to the 1st Defendant as contractor. H e also said that it is the 2nd Defendant that had carried out sensitization workshops, identification o f houses to be dem olished and paid compensation to owners o f such houses. W hen asked whether the P la in tiff were paid compensation, he said that he was not aware as he had not verified. During his cross-examination by Counsel Chagoma, D W 2 stated that the 1st Defendant was em ployed by the 2nd Defendant and that the 1st Defendant carried out the works with the authority and under the supervision o f the 2nd Defendant. H e said that w henever the 2nd Defendant identified houses to be demolished, the dem olition was done by the owners o f the property. M a la w i G overnm ent through the Roads Fund paid the compensation. Blaziyo Mukakama & 41 Others v. Mota Engil & Roads Authority i. H e said compensation was paid so that the owners o f the houses to be demolished Kenyatta Nyirenda, J. could acquire properties outside the road reserve. D W 2 concluded by stating that he fails to understand w h y the Plaintiffs are still com plaining when they w ere fully told the reasons w h y they w ere not paid compensation. In re-examination by Counsel Sitima, D W 2 stated that there w ere several reasons for rejection o f claims and these included (a ) the houses being not close to the road, (b ) the alleged damage being not connected to the road works and (c ) the fact that not all people w ho got compensation m oved out. D W 2 told the Court that despite paying compensation, the 2nd Defendant had a b ig challenge in m ovin g people out o f the road reserve. H e said some people near or within the road reserve w ere affected and received compensation. The Court posed some questions to D W 2. H e told the Court that all those persons whose complaints w ere merited received compensation. H e said he did not have a list or file o f the Plaintiffs on whether they w ere compensated or not. H e said the vibrations could not be the sole cause as the cracks could have equally developed due to poor structural designs and specifications or poor building materials. H e said there w ere some re-alignment made to the w orkin g corridor by the 2nd Defendant after the first assessment and it was possible that the presence o f some houses within or near the road reserve was as a result o f the re-alignments. H e said the assessment was an on-goin g process during the road construction fo llo w in g which the re-alignments w ere done. The Court gave all Counsel the option to ask D W 2 questions regarding matters raised by the Court. In response to questions by Counsel Ulaya, D W stated that he cannot tell i f the Plaintiffs w ere compensated. H e further said that the 2nd Defendant could have brought evidence to show that the Plaintiffs were compensated. Issues fo r Determination The fo llo w in g are the issues for the court’ s determination in this matter: (a ) whether or not the Pla in tiffs’ action against the 2nd Defendant is statute-barred (Issue N o . 1)? (b ) whether or not the 1st Defendant was negligent as alleged or at all(Issue N o .2 )? li Blaziyo Mukakama & 41 Others v. Mota Engil & Roads Authority Kenyatta Nyirenda, J. (c ) W hether the 2nd Defendant can be held liable for the negligence o f the 1st Defendant (Issue N o .3)? W hether or not the P la in tiffs’ action against the 2nd Defendant is statute-barred (Issue N o .l)? It is the case o f the 2nd Defendant that the P la in tiffs action against the 2nd Defendant ought to fail for being statute-barred. Counsel Salima referred the Court to section 4 ( l ) ( a ) o f the Lim itation A c t which provides that actions founded on contract or on tort shall not be brought after the expiration o f six years from the date on which the cause o f action arose. Counsel Salima submitted that although the Lim itation A c t provides, in sections 21 to 25 o f the A ct, for several exceptions in which the limitation period m ight be extended the same are not applicable to the present case. H avin g laid out the applicable law on limitation periods, Counsel Salima turned his attention to the pertinent parts o f the pleadings and the relevant facts. This is to be found in paragraphs 3.1.5 o f the 2nd D efendant’ s Final Submissions: “ 3.1.5 The Re-Am ended Statement o f C laim and the evidence show that the P la in tiffs ’ causes o f a ction arose on diverse dates in 2009. Thus even i f the last cause o f a ction arose on 31st D ecem ber 2009, the last day f o r com m en cin g these p roceed in gs against the 2nd Defendant was on 21st D ecem b er 2015. 3.1.6 The 2nd Defendant, however, was added to these p roceed in gs on 2nd February 2016. W ell after the expira tion o f six years fr o m the date the causes o f action arose. 3.1.7 In pa ra gra ph 5 o f its Am ended Defence, the 2nd Defendant pleads as fo llo w s ... ( As qu oted above). 3.1.8 The Pla in tiffs d id not f ile a rep ly denying the 2nd D efen d a n t’s contention that their claim s are statute barred. In terms o f O rd er 18 rule 13(1) o f the Rules o f Supreme C o u rt which p rovid es that “any a llegation o f fa c t made by a p a rty in his plea d in g is deemed to be adm itted by the opposite p a rty unless it is traversed by that pa rty in his p le a d in g o r a jo in d e r o f issue... ”, the P la in tiffs are deemed to have admitted that their claim s are statute ba rred and thus their claim s against the 2nd Defendant must fa il. 3.1.9 Fu rth erm ore, when a defendant has been added as a p a rty to an existing action, the authorities h old that the case against him starts at the tim e when he is added. ” Blaziyo Mukakama & 41 Others v. Mota Engil & Roads Authority Kenyatta Nyirenda, J. Counsel Salima placed reliance on the English cases o f In Lift v. Peasley and Another [1980] 1 All ER 623 and Kettemen and Others v. Hansel Properties Ltd [1988] 1 All ER 38. The Plaintiffs do not deny that the suit against the 2nd Defendant is statute-barred but assert that the 2nd Defendant w aived its right to a rem edy under the Lim itation A c t in that it acquiesced to the suit being brought after the expiration o f the limitation period. It m ay not be out o f place to quote in full the relevant part o f the Pla in tiffs’ Final Submission: > In its defence, the 2nd defendant pleaded that the claim against it is statute barred. > In pa ra gra ph 9 o f the witness statement, D W 2 stated that the pla in tiffs ’ claim s were brought against the 2nd defendant on 2nd February, 2016 after the expiration o f 6 years fro m the date they arose. F As the co u rt f ile w ill show, the plaintiffs brought an ex p a rte a pplica tion to add the 2nd defendant as a p a rty to the proceedings. The o rd e r was gra n ted on 2nd February, 2016. The ord er was duly served and the 2nd defendant’s lawyers f ile d a n otice o f appointm ent o f lega l p ra ctitio n e rs on 17th February,2016. On 23rd February, the plaintiffs and the 2nd defendant signed a consent ord er p ro v id in g f o r directions f o r fu rth e r conduct o f the matter. On 22nd M arch, 2016, the 2nd defendant served its defence on the plaintiffs. On 20th A p ril, 2017, the plaintiffs served a n otice o f h earing returnable on 10th May, 2017 on the 2nd defendant by post. The 2nd defendant did not attend the h ea rin g and the co u rt adjourned the m atter to another date to p e rm it the fir s t and second defendant to f ile relevant documents f o r the trial. The c o u rt awarded the pla in tiffs costs up to the hearing date stage to the pla in tiffs in any event. The next h ea rin g date was 19th June, 2017. A t the hearing, the 2nd defendant pa ra ded a witness who gave testimony contesting the plaintiffs ’ claim f o r negligence on m erits but also on grounds that the claim s are statute barred. > The law is that, where the defendant has p lea d ed the lim ita tion Act, he has the option o f applying to co u rt to have a tria l o f a p re lim in a ry issue o r in a cle a r case, he co u ld have the a ction dismissed as frivo lo u s, vexatious and an abuse o f the co u rt process- See M a n v u n e w a v S ta g ecoa ch (M a l a w i ) L t d /199712 M L R 23 > S n e ll ’s P rin c ip le s o f E q u ity (2 6 ed. P a e e 39 states as follow s: “ The p rin cip le s which equity applies to cases not covered by a statutory p e rio d have been thus stated: ‘N ow the doctrine o f laches in courts o f equity is not an arbitrary technical doctrine. Where it w ould be p ra ctica lly uniust to sive a remedy either because the party has, by his conduct, done that which m ivht fairly be rega rded as equivalent to a w aiver o f it. o r w h e re b y h is c o n d u c t o r n e s t e d h e h a s. th o u s h p erh a p s n o t w a iv in s that rem ed y, vet p u t the o th e r party in a situation in w hich it w o u ld n o t b e rea so n a b le Blaziyo Mukakama & 41 Others v. Mota Engil & Roads Authority Kenyatta Nyirenda, J. to v la c e h im i f the re m e d y w ere a fterw ards to b e asserted, in either o f these cases lapse o f time and delay are m ost material. '> S ectio n 2 8 o f the L im ita tion A c t provid es as follow s: N o th in g in this A c t shall affect any equitable ju ris d ic tio n to refuse r e lie f on the g ro u n d o f acquiescence o r otherwise. y I f defendants im p rop erly jo in e d do not m ove w ithout delay to be struck out, and take p a rt in the defence, they may be h e ld jo in tly lia ble with the other defendant f o r the costs o f the a ction — O r d e r 15 r6 (1 5 ) R S C . See also V a lla n ce v B ir m in e h a m L a n d C o rp o ra tio n (1 8 7 6 ) 2 C h . D .3 6 9 : o r they may be deprived o f costs i f they have taken an active p a rt in the litig a tio n - B u r t le r v R i c e 1191012 C h . 2 7 7 y F rom the fo re g o in g , it is subm itted that the 2nd defendant by n ot applying to be struck out as a p a rty to the proceed in gs imm ediately they were added as a p a rty o r indeed applying to set aside the o rd e r which was obtained exparte o r applying to have a tria l o f a p re lim in a ry issue before o r at tria l o r to dismiss the a ction f o r b ein g frivolu s, vexatious and an abuse o f c o u rt p rocess and instead o p tin g to f ile a defence, list o f documents, tria l bundle and p a ra d in g a witness who contested the m erits o f the pla in tiffs ’ claim s waived its rig h t to a remedy under the L im ita tion Act. In the words o f the L im ita tion Act, the 2nd defendant should be deemed to have acquiesced to the pla in tiffs ’ claim s being brought after the expira tion o f the lim ita tion period. Therefore, in exercise o f its equitable ju ris d ictio n , the co u rt should n ot p e rm it the 2nd defendant to assert the defence o f lim ita tion especially after tria l was conducted and concluded. ” I have considered Issue N o . 1 and the submissions thereon by both Counsel. It is com m onplace that the Plaintiffs do not deny that the suit against the 2nd Defendant is caught by the Lim itation Act. In this regard, the case o f Liff v. Peasley and Another, supra, is instructive. In Liff v. Peasley and Another, supra, the p la in tiff com m enced an action against the 1st defendant within the limitation period. A fte r the expiration o f the limitation period, the p la in tiff obtained, ex parte, an order adding the 2nd defendant to the action. The 2nd defendant challenged his join der to the action on the basis that the p la in tiffs action against him was statute-barred. The Court A ppeal held that an action against a person jo in ed as a defendant was deemed to have been com m enced against him from the date on which the w rit was amended, so that i f the action was then time-barred, there was no useful purpose in allow in g the joinder. In the apt observation by Stephenson LJ: “ it was by 1887 the settled rule o f p ra ctice that amendments were not admissible when they p re ju d iced the rights o f the opposite p a rty as existing on the date o f such amendments. So said L o rd Esher M R in Weldon v N ea l /{1887) 19 QBD 394 at 398 ] where this co u rt ...affirm ed a decision o f the divisional co u rt striking out paragraphs Blaziyo Mukakama & 41 Others v. Mota Engil & Roads Authority Kenyatta Nyirenda, J. V ' ■ adding to a statement o f claim fres h causes o f a ction because the amendments w ould deprive the D efendant o f the benefit o f the statute o f lim itations. In M a b ro v E a gle Star and B ritish D om in ion s Insurance Co. L td [ [1932] 1 KB 485] this co u rt upheld a refusal to jo in a p la in tiff on the same ground. S crutton LJ, at p a g e 487, restated that p ra c tic e and that basis o f it : ‘in my experience the court has always refused to allow a party or a cause o f action to be added where, i f it were allowed, the defence o f the Statute o f Limitations would be defeated. The Court has never treated it as just to deprive a defendant o f a legal defence. ’ Where, as here, a d irect action against a proposed defendant can be defeated by a plea o f lim itation, the p la in tiff cannot escape the consequence by seeking to jo in the proposed defendant as a party in pre-existin g p roceed in gs... ’ - Emphasis by underlining supplied Brandon LJ explained the basis fo r not a llow in g such a join d er in this w ay, at page 639: ‘‘There are two alternative bases on which the rule o f p ra ctice can be justified. The firs t basis is that, i f the addition were allowed, it w ould relate back so that the a ction w ould be deemed to have begun as against the p erson added, not on the date o f the amendment, but on the date o f the o rig in a l w rit; that the effect o f such rela tion back w ould be to deprive the person added o f an a ccru ed defence to the claim on the g rou n d that it was statute barred; and that this w ould be unjust to that person .... The second alternative basis f o r the rule is that, where a person is added as defendant in an existing action, the a ction is only deemed to have begun as against him on the date o f the amendment o f the w rit; that the defence that the claim is statute barred therefore remains available to him ; and that, since such defence affords a com plete answer to the claim, it w ould serve no useful purpose to allow the addition to be made.. ” The dicta by Brandon LJ w ere approved by the House o f Lords in Kettemen and Others v Hansel Properties Ltd [1988] 1 All ER 38 in the fo llo w in g terms: “A cause o f a ction is necessarily a cause o f action against a p a rticu la r defendant, and the b rin g in g o f the a ction which is re fe rred to must be the b rin g in g o f the action against that defendant in respect o f that cause o f action. The causes o f a ction here against the lo ca l authority and the architects were separate and distinct fr o m the cause o f action against Hansel. In my opin ion there are no g o o d grounds in p rin c ip le o r in reason f o r the view that an a ction is brought against an additional defendant at any e a rlier time than the date on which that defendant is jo in e d as a p a rty in accordance with the rules o f court. ” Blaziyo Mukakama & 41 Others v. Mota Engil & Roads Authority Kenyatta Nyirenda, J. In the present case, the action by the Plaintiffs against the 2nd Defendant was com m enced on 2nd February 2016. A t that point the limitation period had run out and the 2nd Defendant’ s join d er to these proceedings was improper. I n ow turn to the assertion by the Plaintiffs that the 2nd Defendant w a ived its right to a rem edy under the Lim itation A ct. Even though the assertion appears, on the face o f it, attractive, it lacks merit fo r the simple reason that w a iver or acquiesce was not pleaded by the Plaintiffs. It is a w e ll settled principle that the court can only determine matters as pleaded by the parties, not venturing into issues not raised by the parties in their pleadings: see the cases o f Malawi Railways Limited v. P. T. K. Nyasulu MSCA Civil Appeal No. 13 of 1992 and Martin Nyirenda v. Press Agriculture Limited, MSCA Civil Appeal No. 16 of 2006 unreported. The parties to an action as w ell as the court are bound by the pleadings. Thus, in the absence o f an amendment to the pleadings, neither the P la in tiff nor the Defendants can introduce a new issue. Likew ise, a court cannot decide on something that is not put before it through pleadings. In Malawi Railways Limited v. P. T. K. Nyasulu , supra, the Supreme Court o f A ppeal quoted with approval a passage from the (1 9 6 )) Current L eg a l Problem s entitled “ The present importance o f pleadings” by Sir Jack Jacob as follow s: “As the p a rties are adversaries, it is left to each one o f them to form u la te his case in his own way, subject to the basic rules o fp lea d in g s .. . f o r the sake o f certainty and finality, each p a rty is bound by his own pleadings and cannot be allow ed to raise a different o r fresh case w ithout due amendment p ro p e rly made. Each p a rty thus knows the case he has to meet and cannot be taken by surprise at the trial. The co u rt its e lf is as bound by the pleadings as they are themselves. It is no p a rt o f the duty o f the co u rt to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute w hich the p a rties themselves have raised by their pleadings. Indeed, the co u rt w ould be a ctin g con tra ry to its own ch a ra cter and nature i f it were to pron ou n ce any claim o r defence n ot made by the parties... ” In so far as w a iver or acquiesce was not pleaded by the Plaintiffs, the same cannot be sm uggled in through the backdoor, that is, submissions by Counsel at the close o f the case. In the circumstances, it is m y finding that the Pla in tiffs’ action against the 2nd Defendant is statute-barred. A ccord in gly, the action against the 2nd Defendant is dismissed w ith costs. Blaziyo Mukakama & 41 Others v. Mota Engil & Roads Authority Kenyatta Nyirenda, J. W hether or not the 1st Defendant was negligent as alleged or at all? (Issue N o .2 ) The case of Blyth v. Birmingham Waterworks Company (1856) 11 Ex Ch 781 is famous for its classic statement o f what negligence is and the standard o f care to be met. Baron A lderson made the fo llo w in g famous definition o f negligence: “N eg lig en ce is the om ission to do som ething which a reasonable man, guided upon those considerations which ord in a rily regulate the conduct o f human affairs, w ould do, o r d oin g som ething which a prudent and reasonable man w ould n ot do. The defendants m ight have been lia ble f o r negligence, if, unintentionally, they om itted to do that which a reasonable person w ould have done, o r did that which a person taking reasonable precautions w ould n ot have done ” For an action in n egligence to succeed, the p la in tiff must show that (a ) there was a duty o f care ow ed to him or her, (b ) the duty has been breached, and (c ) as a result o f that breach he or she has suffered loss and damage: see Donoghue v. Stevenson [1932] AC 562 quoted w ith approval b y Chimasula Phiri J, in Gaffar v. Press Bakeries Ltd and Another, HC/PR Civil Cause Number 2269 of 2002 (unreported): “L ia b ility in negligence arises when the act o r om ission results in damage to a person whether in fo r m o f p erson a l injury o r p ro p erty damage. The to rt o f n egligen ce is said to have three ingredients: (a) A lega l duty on the p a rt o f the defendant towards the p la in tiff to exercise care in such conduct o f the defendant as fa lls within the scope o f the duty. (b) A breach o f the duty. (c ) C onsequential damage to the p la in tiff” D u ty o f care It is a principle o f com m on law that one must take reasonable care to avoid acts or omissions which one can reasonably foresee w ould lik ely injure persons w ho are so closely and directly affected by on e’ s act or om ission that one ought to have them in contem plation as having been so affected when doing the act: see Donoghue v. Stevenson, supra. The all important question to ask in the present case w ith regard to duty o f care is whether or not the Plaintiffs w ere so closely and directly affected by the 1st Defendant’ s act or om ission that the 1st Defendant ought to have had them in F Blaziyo Mukakama &41 Others v. Mota Engil & Roads Authority Kenyatta Nyirenda, J. contemplation as persons that w ould be so affected before doing the act or omission? A perusal o f the evidence before the Court shows that the houses o f the Plaintiffs are within the reserve area o f the roads in question. N on e o f the Plaintiffs gave evidence to the effect that his or her house was outside the road reserve. I also make the fo llo w in g findings o f fact: (a ) the construction works in volved use o f heavy machinery which caused vibrations to houses or buildings close to the machinery; and (d ) there was a risk o f damage to the houses which w ere within and/ or very close to the road reserve o w in g to the vibrations. On the basis o f the foregoin g, I am satisfied that the 1st Defendant ow ed the owners o f the houses that w ere within the road reserve or close to the road reserve a duty o f care not to subject their houses to a risk o f damage since it was foreseeable, as was rightly conceded by D W 1 during cross-examination, that the use o f heavy machinery w ould cause damage to houses or buildings that w ere within the road reserve or close to the road reserve. B reach o f the duty The Plaintiffs allege that their houses developed cracks as a result o f the negligence o f the 1st Defendant. The particulars o f the alleged negligence are that the 1st Defendant (a ) proceeded with the construction o f the road without assessing the risk o f damage to the P la in tiffs’ houses, and (b ) had failed to have regard for the safety o f the Plaintiffs. A s already mentioned hereinbefore, the burden o f p r o o f lies upon the Plaintiffs to g iv e evidence in support o f the alleged negligence as particularized in the Re- Am ended Statement o f Claim. I f the alleged facts are proved and the inferences w hich are drawn from those facts are consistent w ith n egligence as set out in the Re-Am ended Statement o f Claim, n egligence w ill be inferred upon the 1st Defendant. I f at the end o f the day, the evidence by the Plaintiffs leaves the case in balance, without satisfying the Court that the particularized negligence was occasioned by the 1st Defendant, the Plaintiffs w ou ld have failed in provin g their action: see Jum a v. M a n d a la M o to r s L im ite d [1993] 16 (1 ) M L R 139. A n analysis o f the material parts o f the respective testimonies o f the Plaintiffs boils dow n to this: that “ the roa d construction works involved use o f heavy m achinery Blaziyo Mukakama & 41 Others v. Mota Engil & Roads Authority Kenyatta Nyirenda, J. w hich caused vibrations and shaking o f their houses as a result o f which they were dam aged”. A bsolu tely no evidence was led to prove the alleged negligence, that is, that the road construction was done without assessing the risk o f damage to the houses o f the Plaintiffs. In this regard, can it be said that the Plaintiffs, by this kind o f evidence, have managed to prove negligence in the particular manner alleged in the R e-A m ended Statement o f Claim ? Alternatively, can an inference drawn from these facts or evidence be consistent with the negligence alleged by the Plaintiffs? There is nothing in the evidence before the Court to suggest or sign ify that the 1st Defendant had carried out the road construction works without prior risk assessment o f possible damage or that the defendants had failed to have regard to the safety o f the Plaintiffs as alleged in the Statement o f Claim. T o the contrary, there was ample evidence before the Court that owners o f properties within the road reserve w ere compensated and that the compensation was paid so that the owners o f the said properties could acquire alternative properties outside the road reserve. The Plaintiffs did not even attempt to advance any reason whatsoever to explain h ow it happened that they w ere not paid any compensation w hatsoever when their houses w ere situated within the road reserve. In this regard, I am inclined to agree with the D W 2 w ho confirm ed that all owners o f properties within the road reserve w ere paid compensation but not all o f them m oved out. It w ill be recalled that the Plaintiffs also pleaded that they w ou ld seek to rely on the principle o f res ipsa loquitur. This issue was not pursued in the Pla in tiffs’ Final Submissions or at all. In any case, fo r the principle to apply, a p la in tiff has to prove 3 elements, namely, (a ) the thing causing the damage was under the control and management o f the defendant, (b ) the occurrence could not have happened without negligence and (c ) there is no evidence to show h ow the occurrence happened: see Phekani v. Automotive Products Limited (1993) 16 (1) MLR 427 (HC) and Mugonya and Another v. Electricity Supply Commission of Malawi [1997] 1 MLR 295. In the present action, it was the case o f the Plaintiffs that damage to their houses was caused by vibrations resulting from the 1st Defendant’ s construction works w hich in volved use o f heavy machinery. This fact is not in dispute. A s such, the cause o f the damage to the Pla in tiffs’ houses is known and, accordingly, the doctrine o f res ipsa loquitor is not applicable in this case to prove the alleged negligence o f the 1st Defendant. The cases o f Kalea v. Attorney General [1993] 16 (1) MLR 152 and Selemani & another v. Advanx (Blantyre) Ltd [1995] 1 Blaziyo Mukakama & 41 Others v. Mota Engil & Roads Authority Kenyatta Nyirenda, J. MLR 262 are instructive. In both cases, the plaintiffs had respectively pleaded the principle o f res ipsa loquitor but the Court held that the principle was not applicable because the P la in tiff knew the cause o f the accident. W hether the 2nd Defendant can be held liable for the negligence o f the 1st Defendant (Issue N o .3 )? H avin g held (a ) under Issue N o . 1, that the P lain tiffs’ action against the 2nd Defendant is statute-barred, and (b ) under Issue N o .2, that the 1st Defendant was not negligent as alleged? Issue N o. 3 has to fall by the w ayside on account o f been redundant. Conclusion The Plaintiffs have failed to prove their claim against the 1st Defendant to the requisite standard o f proof. Further, the action against the 2nd Defendant is statute- barred by reason o f the Lim itation Act. In the premises, the action by the Plaintiffs is dismissed w ith costs. Pronounced in Court this 23rd day o f A p ril 2018 at Blantyre in the Republic o f M alaw i. Kenyatta Nyirencta JUDGE O 20