Friday and Another v Attorney General (Civil Cause 287 of 2020) [2021] MWHC 392 (14 July 2021)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI ZOMBA DISTRICT REGISTRY CIVIL CAUSE NO 287 OF 2020 (Before Honourable Justice Mzonde Mvula) BETWEEN BATON, PRED AM isos ci. isc caccemumores « swemaireni ers coeatestcninetwecgesssdiesssecessese-- Lo? CLAIMANT ISSA DANTE L..........ce0 sbeveenenesusoreeassesecnseasaneeasseceseses sesvvessteeteonseresserm CLAIMANT AND ATTORNEY GENERAL (MALAWI POLICE SERVICE).......scssecseccscssecse .-DEFENDANT CORAM: HONOURABLE JUSTICE MZONDE MVULA Mr. P. Chinguwo, of counsel for the Claimants; Mr. D Zikagwa, of Counsel for the Defendant; Mr. A. Nkhwazi, Court Clerk and Official interpreter. RULING MVULA, J. 1.0 Introduction 1.1 The claimants took out’ summons for an application for summary judgment pursuant to Order 12 rule 23 (1) of the Courts (High Court) (Civil Procedure Rules) 2017. The same, was set down for the 9 June 2021 at 10.00am. The claimant adopt the affidavit in support of the application, as well as skeleton arguments. The defendant did likewise. We shall recapture the material facts and we shall determine the application as follows: 1 6. 1.7 1.8 1.9 2.0 2.1 The application for summary judgment lie on assault, disfigurement, as well as pain and suffering. The case for summary judgment does not lie against false imprisonment and malicious prosecution. The claimants so moved the court. Response to the application by the defendant The defendant filed a statement in opposition to the application deponed by Owen Chuma. Skeleton arguments were files in support of their application. The same were adopted as well. Their position of departure is Order 12 Rule 23(1) of CPR. Their position is that the application for summary judgment stands where the defendant has filed a statement of defence, but, there are no real prospect of defending the claim. Their contention is that the defence they filed, raises triable issues. There are the claims which the clamant has to prove the same at trial. The defendant is entitled to unconditional leave to defend the matter. The issues they raise in defence, can only be determined at trial and not at summary trial procedure. As such the application for summary trip should be dismissed. The Law applicable The issue under trial here is whether summary judgment ought to be entered. We begin with the stipulation under the civil procedure rules over matters of this nature. Order 12 rule 23 of the Courts (High Court) (Civil Procedure) Ruies provides as follows: “The Claimant may apply to the Court for a summary judgment where the Defendant has filed a defence but the Claimant believes that the Defence does not have any real prospect of defending the claim” 3.2 3.3 3.4 3.5 The claimants argue that the defence raised by the defendant herein under exhibit marked “PC1” is a sham. Let us therefore take a look at the statement of case before we assess the veracity of the defence. On paragraph 3 it reads: *3. During the course of investigations, the clairnants were assaulted, beaten and tortured... 4 Without prejudice to the burden on the Defendants to justify the Claimants arrest, the claimants were arrested wrongly and without reasonable or probable cause and were thereby falsely imprisoned... 5. The Claimants were prosecuted by the defendant maliciously and without reasonable or probable cause for the alleged offence of robbery...” The claimants take out action on three heads in the same cause seeking damages over three heads. There are first for assault which ked them to suffering personal injuries, the second for false imprisonment and the third, for malicious prosecution. The onus rests on the defendant that the facts as contained in exhibit PC1 are in dispute to amount to a proper defence. See Rasl v Tutla 1992 15 MLR 419. If a proper defence or real nature of the defence is not raised, there is no triable defence. It becomes the duty of the judge to enter judgment for the claimant in the circumstances. See Anglo-Italian Bank v Wells [1878] 38 LT 197. This happens because the court is satisfied | that the defendant is unable to set up a bona fide defence. Summary judgment allows speedy resolution of the matter, than waste court precious time and resources of a party which he has unreasonably been kept away from. See Manica (Malawi) Ltd v Interocean Freight Service (Pty) Ltd (supra). 4.1 4.2 4.3 Conclusion Having considered the grounds advanced by the claimant for summary judgment, the court finds that the defence herein indeed consists of general denials in the 6 paragraphs. In this regard, it has no support of the law as per Order 7 Rule 6 of the Courts {High Court) (Civil Procedure} Rules 2017. There are no arguable grounds in the statement of defence. Succinctly put, it is a sham. This court so finds. However, if we allow summary judgment to enter on the three heads alone, leaving out the last two, yet they form part of the same case, it would be synonymous with abuse of process. It would not be prudent to segregate the heads and enter summary judgment over part of the claim yet over the other heads to let the case be tried over them. It is a waste of court time, space, resources and prudence in prosecution of the case. Let the case be determined as one for tidiness in the trial procedure. The application for summary judgment, accordingly does not succeed only because of technicality. Each party bears own costs. Made in Court this 14% day of July 2021 JUDGE.