Chiyombo v Interline Bus Service (Civil Case 39 of 2019) [2022] MWHCCiv 67 (4 October 2022)

eveyone Eker nae IN THE HIGH COURT OF MALAWI CIVIL DIVISION MZUZU DISTRICT REGISTRY CIVIL CAUSE NO. 39 OF 2019 NANANGATCHT CHEV OME O : wccccncenunars-cowunyyeiueinsn sicance guioniarsinen e eneenmawaueuneeunnmrenes CLAIMANT AND INTERLINE BUS SERVICE LIMITED.................c:eeeceeeneeeeeeeeneeeeenees 15 DEFENDANT PRIME INSNURANCE COMPANY LIMITED ...........:0cseeceeeeee renee renee 2NP DEFENDANT CORAM: Honourable Justice T. R. Ligowe M. Chinkhuntha, Counsel for the Claimant A. Gausi, Counsel for the Defendant F. Luwe, Official Interpreter R. Luhanga, Recording Officer and Court Reporter RULING Ligowe J, IL. This is the ruling on an application by the Defendants to dismiss the action for being an abuse of the process of the court under Order 10, rule | of the Courts (High Court) (Civil Procedure) Rules. The ground is that at the time this action was commenced, there was already an action commenced by the Claimant against the Defendant in respect of the same reliefs in the Senior Resident Magistrate’s Court. The sworn statement in support of the application deposed by Counsel Aaron Gausi states that the Claimant commenced an action in the Senior Resident Magistrate’s Court in respect of an accident alleged to have been caused by motor vehicle registration no. MJ 5468 on 14" August 2018 against the Defendants, claiming damages for pain and suffering, damages for loss of amenities of life, damages for disfigurement, special damages and costs of the action. He exhibited a summons to the sworn statement for Civil Cause No. 5060 of 2018 in the Senior Resident Magistrate’s Court filed on 21*t November 2018 between Nanangachi Chiyombo and Interline Bus Services and Prime Insurance Company Limited. The statement of claim in that case avers that the 1*' Defendant is sued as the owner of motor vehicle registration number MJ 468 Scania Torino Bus at the material time. The 2"! Defendant is being sued pursuant to s.148 of the Road Traffic act as insurer of the motor vehicle under certificate number 131186780 for the period from 11" October 2017 to 10" October 2018. On 14 August 2018, the 1 Defendant was driving his motor vehicle from Chitipa heading towards Karonga with passengers on board. Upon reaching Tenenthe area, the driver of the motor vehicle lost control of it due to over-speeding. Consequently the motor vehicle swerved to the extreme nearside of the road where it hit a tree and overturned. Due to the impact the plaintiff sustained multiple injuries including a painful deformed right elbow, blunt chest, trauma associated with multiple bruises in the face, posterior aspect on both elbows, anterior aspect of right knee joint and on the dorsum aspect of the right hand. The plaintiff totally believes that the accident was caused due to the negligence of the 1 Defendant. The particulars are over speeding, failure to keep to his nearside lane, driving carelessly, failing to stop, slow down or in any other way manage or control the vehicle so as to avoid the accident, and failure to drive the motor vehicle as would be generally expected of a reasonable driver. As a result of the accident the plaintiff suffered loss and damage in that he sustained unstable fracture of the right distal humerus, blunt chest trauma, and bruises in the face, elbow, anterior aspect of the right knee and dorsum aspect of the right hand. He also incurred special damages in the cost of a police report K3 000 and medical report K21 000. . Counsel Gausi further deposed that after the Defendants filed their defence, the parties entered into a consent order which was endorsed by the court. He exhibited the consent order dated 15" April 2019 showing that the parties agreed for the Defendants to pay One Million Kwacha inclusive of costs to be paid before 30 June 2019, upon which the matter would stand withdrawn. . The present case was commenced on |“ February 2019 and the claim is the same as the case in the Court of the Senior Resident Magistrate referred to above. It states that the 1* Defendant was at all material times an employer of Leonard Scoti, deceased, a driver of the 1*' Defendant’s motor vehicle registration number MJ 5468 Scania Torino Bus. The 1 Defendant is thus being sued vicariously as an employer of the said Leonard Scoti. The 2" Defendant is being sued as the insurer of the motor vehicle at the material time under certificate of insurance number 13140154 for the period from 11" October 2017 to 10 October 2018. On or about 14" August 2018 at 8:10 hours, the 1*' Defendant’s driver was while in the course of his employment, driving the said motor vehicle from Chitipa heading to Karonga with passengers on board, including the Claimant. Upon arrival at Tenenthe area, the driver drove so negligently and/or recklessly and at a high, improper and unreasonable and excessive speed and incompetently, that he failed to negotiate a nearside bend and ended up hitting down a tree on the further extreme off side of the road and overturned. The Claimant also claims res ipsa loquitur. It is further claimed that the Claimant sustained a painful deformed right elbow joint, blunt chest trauma associated with multiple bruises in the face, posterior aspect of both elbows, anterior aspect of the right knee joint and on the dorsum aspect of the right hand, and unstable fracture of the right distal humerus with suspected radial nerve damages. He also suffered special damages in costs for a police abstract report K5 000 and medical report K22 000. So, he claims damages for pain and suffering, damages for loss of amenities of life, damages for disfigurement, the special damages and costs of the action. In her sworn statement in opposition to the application, the Claimant confirms having been involved in the accident and further states that after she was discharged from hospital, she came to Mzuzu to meet a friend, Mr Kondowe to assist her find a lawyer. Together they settled for Counsel Moses Chinkhuntha, the one representing her in the present case. So, she sent her medical report and police report to Mr Kondowe to forward to the lawyer. When she met Counsel Chinkhuntha she indicated that she would not accept any amount less than Four Million Kwacha as compensation and they agreed to commence the case in the High Court. Chinkhuntha is the only lawyer and legal firm she instructed to handle her case, being the present one. She further states in her sworn statement that she has never been called to ask or inform her of any offer for One Million Kwacha nor had she instructed anyone to accept an amount less than Four Million Kwacha. To her knowledge, the case Counsel Chinkhuntha is handling for her has not been settled. She also has never received any money as compensation from the Defendants. In that regard, any other case in the Magistrate’s Court or the High Court bearing a different Cause Number form the present one is none of her business. She further deposes that when she was informed of the other case awaiting hearing, she called Counsel Wesley Mwafulirwa to stop that case and to her knowledge, it was withdrawn. If the lawyers continued, they did it at their own peril as she had never instructed them to handle her case. . The question is whether in these circumstances the present matter is an abuse of the process of the court. It was held in Ndiwo v. Makina and another (1990) 13 MLR 313 following section 44 of the Courts Act, Cap 3:02, that a subordinate court may dismiss or stay proceedings where the matter in question is res judicata between the parties or where by reason of multiplicity of proceedings in any court the proceedings ought not to be continued. The principle of res judicata does not only apply to subordinate courts. So too is the rule against multiplicity of proceedings. The case of Nthara v. ADMARC [1995] 1 MLR 177 brings out two grounds for the rule of res judicata. One on public policy; that it is the interest of the State that there should be an end to litigation; and the other on the hardship on the individual that he should not be vexed twice for the same cause. It was further held in that case that the rule of estoppel by res judicata, which is a rule of evidence, is that where a final decision has been pronounced by a judicial tribunal with competent jurisdiction over the parties to and the subject-matter of the litigation, any party or privy is estopped in any subsequent litigation from disputing or questioning such decision on the merits. Still relevant to the application is the statement of Lush, J. in Norman v Mathews (1916), 85 L. J. K. B. 857 applied by Kalaile J in Mtemadanga Farm Limited v. Agricultural Development and Marketing Corporation 12 MLR 25), that: "There is an inherent power in every court to stay and dismiss actions or applications which are frivolous and vexatious and abusive of the process of the Court. ... In order to bring the case within the description it is not sufficient merely to say that the plaintiff has no cause of action. It must appear that his alleged cause of action is one which 4 on the face of it is clearly one which no reasonable person could properly treat as bona fide, and contend that he had a grievance which he was entitled to bring before the Court." 10. In view of Civil Cause No. 5060 of 2018 in the Senior Resident Magistrate’s Court filed on i. 21S November 2018 between Nanangachi Chiyombo and Interline Bus Services and Prime Insurance Company Limited, the present case should not have been commenced, as that offended the rule against multiplicity of proceedings. After the consent order in the Magistrate’s Court, there arose another reason to discontinue the present case as it thereafter became res judicata. | therefore concur with the Defendants that the present matter is an abuse of the process of the court and should be dismissed. I am aware that the Claimant said he had not instructed Kawelo Lawyers to commence the action in the Magistrate’s Court on his behalf and he raised a few other issues with regard to the manner the lawyers handled that case. Kawelo Lawyers were not part of the present proceedings and have not been heard. The Claimant may wish to complain to the Disciplinary Committee of the Malawi Law Society for them to inquire into the conduct of the legal practitioner. 12. The action is dismissed with costs. 13. Made in chambers this 4" day of October 2022.