Banda and 4 Others v Big Foot Express and Another (Personal Injury Cause 147 of 2012) [2014] MWHC 503 (7 October 2014)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI ZOMBA REGISTRY PERSONAL INJURIES CAUSE NO, 147 OF 2012 BETWEEN: GOODWIN BANDA & 4 OTHERS 0000.00.00. csssssssnssosssssecesssssusessrscsennsorse PLAINTIFFS AND BIG FOOT EXPRESS .....sssccsscsseccesese srieseseebatecnnseonseni 15? DEFENDANT REAL INSURANCE COMPANY LIMITED......ccscsstscssseveceeseserneneed 2 DEFENDANT CORAM: HOWARD H. PEMBA, ASSISTANT REGISTRAR REMMIE NG’OMBA (under brief for Mr Mipande) for the Plaintiffs SHABIR KHAN, for the Defendants TEPEKA, Court Clerk ORDER This is the order of this court upon hearing an application for summary judgement. The application was heard on the 14" day of July 2014. The summons were taken under Order 14 rule 1 of the Rules of the Supreme Court. The basis of the plaintiffs’ summons is that the defendants herein have previously admitted liability to the other plaintiffs on a claim which arose out of similar facts, i.e. the same accident which gave rise to the present matter. It is the plaintiffs’ contention that the said admission which is evidenced by a consent order executed on behalf of the defendants entails that liability on the part of the defendants herein is settled as far as this accident is concerned, and therefore that the defendants are, by the principle of res judicata precluded from denying the said issue of liability in the present proceedings. i 1 The plaintiffs thus pray that judgement be entered against the defendants for personal injuries as pleaded on the ground that the latter has no arguable defence on the merits of this matter. The Plaintiffs also pray for costs. Cn their part, the defendants vehemently oppose to the application for summary judgement, The defendants contend that much as they indeed settled the claim by other plaintiffs on the same accident by consent, the said consent order does not impute or settle the issue of liability of the defendants in respect of the accident giving rise to the present matter. The defendants contend that the said consent order was executed by way of compromise which does not create an estoppel since the matter was not adjudicated upon on its merits. Based on the foregoing, the defendants pray that the plaintiffs’ application be dismissed and that the defendants be given leave to defend the matter on its merits. The plaintiffs filed skeleton arguments in support of their application. The defendants did not file any skeleton arguments. I do not wish to replicate the plaintiffs’ submission. However, the plaintiffs have relied, inter alia, on the case of Bhogal vs. Punjab National Bank, [1977] 2 ALL ER 286 at 303 where the court adumbrated the parameters where summary judgement should be granted. In that case, the court gives a two way test. It is said that in an application of this sort, the court needs to ask itself (a) whether the defendant’s defence is credible. If the answer to the above is in the affirmative, the court needs to go further and ask itself (b) whether the defendants defence is a bonafide defence. I must say, on the facts of this case that this court finds the defendants? defence to be credible if looked at in isolation. However, when this court considers that the defendants, who have this seemingly credible defence have gone on to settle a matter by compromise as the defendants call it, which is based on the same facts, and the fact that the defendants have not given an explanation as to why they found the circumstances of that other claim to warrant settlement “ by compromise” and why this claim, which is based on the same facts, is found unbefitting the said “compromise”, this court fails to join the defendants in their belief that they do have a bonafide defence on the merits of the present matter. Going by the above, I find that the defendant’s defence fails the “bonafide defence” test if looked at in light of the consent order made by the defendants in settlement of claims arising irom the same accident giving rise to the present matter. In view of the foregoing, it is hereby ordered that the summary judgement be and is hereby entered with costs against the defendants herein. MADEINC ERS this 7" day of October 2014, hk Howard Pemba 3 ASSISTANT REGISTRAR ‘