Hauya v Mapeto(DWSM) Limited (Personal Injury Cause 4 of 2019) [2020] MWHC 191 (21 September 2020)

J Ma Republic of Malawi i IN THE HIGH COURT OF MALAWI ZOMBA DISTRICT REGISTRY PERSONAL INJURY CAUSE NO. 4 OF 2019 BETWEEN i CLEMENT HAU1 A. J. I. AND | | I MAPETO {DWSN j LIMITED CLAIMANT RESPONDENT CORAM: HONOURABLE JUSTICE R. E. KAPINDU, PhD I • Mr. 1 zimphonje, of Counsel for the Claimant Mr j pd^mpakeni, of Counsel for the Defendant Mr. j hvit^ Banda, Official Interpreter KAPINDU, J ORDER 1. This is ar 11 application brought by the Claimant to strike out the Defendant and 7 of tl I defence. The Application is brought under Order 7 Rules 6 I K Courts (High Court) (Civil Procedure) Rules, 2017 (the CPR, 2017). 2. The action .self was commenced in January 2019. The Claimant in his claim dated 1911 December 2018 but attached to the summons of 11th I January, 019^ claims that he sustained injuries when he was $ im that the accident occurred due to the negligence of the I Defendanimd !he has provided the particulars of the alleged negligence. aided a shoulder dislocation. 4. The DefenSanJ’s Defence does not have a clear date as it simply shows “25th day |f 2C19.” However, the court stamp shows that it was filed on the 21st dJ| of March, 2019. Ik I ! IM I H in the course of his work at the defendant’s factory. He claims h 5. In the Defqfece, the Defendant simply makes denials of the claims made by the claimlpt without providing any explanation for such denials or providing an alternative story of what actually happened. 6. Basically ijis by reason of the nature of the Defendant’s denials in the Defence th®t the Claimant has taken out the present application to strike out the DeBnce and enter judgment on liability in favour of the Claimant as pleaded Bn the Claim, and for damages to the assessed. II I I ■ ■ I I I 7. Counsel D i| present Del imphonje for the Claimant argued that the nature of the nee offends Order 7 Rules 6 and 7 of the CPR, 2017. 8. Order 7 Ru provides that “A defendant shall deal with each fact in the claim and 'Ball not deny a claim generally.” 9. Order 7 R || 7, jn turn, provides that: HII i “Whefe the defendant does not agree with a fact that the claimant lias stated in the claim, the defendant shall file and serve a defence that denies the fact and states what I I the defendant alleges happened.” £ 10. Cou feel Dzimphonje submits that the Defendant’s Defence clearly falls short) If th e requirements of Order 7 Rule 7 of the CPR, 2017, 11. Coutfeel further states that an examination of the Defence shows that it has! |io real prospects of success. 12. On its part, Counsel Kadyampakeni for defence has argued that although iqdeed the law does not allow for general denials, a distinction must be drywn between a general denial and specific denial. He states that an instanc |of a general denial would be where the defendant simply states that “:we deny paragraph 3 of the claim. 13. By contrast, Counsel Kadyampakeni argues, in the present case what we h^ye are specific denials for every paragraph. The Defendant is stating in ii $ denials that the allegations made in each specific paragraph did not hajz >en and the claimant is being put to strict proof thereof. 14. Counsel Kadyampakeni has invited the Court to look at the totality । of the Defe. e e nd not be unnecessarily fixated on the provisions of Order 7 Rule 7 of she OPR, 2017. 11 /T ’ Coun |el Kadyampakeni also went further to counter-argue that the claimant hi Hse] f failed to comply with the rules of procedure. He invited the Court tc ilooi P at the provisions of Order 7 Rule 21 which provides that: “Whe ; damages are claimed in a claim or counter- claim, the: claim or counter-claim shall also state the a||d amount of damages sought; including , aggravated and exemplary damages, and the natur specil $ basis on which the amount claimed has been worked out r estimated.” sei contended that it is clear on the face of the claim that this rule was n |t complied with. It was his argument that we cannot therefore even begirj talking about the Defence when the claim itself was defective. I । i I : i : • : 17. Counsel then concluded his arguments on this point by stating that the Courtshould be mindful that the CPR, 2017 are still new rules and that courtyshculd not be unnecessarily harsh in enforcing them. Counsel provided that in truth, what the Claimant should have been doing was to I s . seek leave | |o amend the Claim. i | IK 18. In response to the Defendant’s representations, in particular the argumentslpremised on Order 7 Rule 21, Counsel Dzimphonje responded B that the CMirt should disregard those arguments because the Defendant has no cleMi hands. Counsel, did not quite elaborate on what exactly he meant by tflis assertion. ■ 1 19. How Iver? Counsel Dzimphonje proceeded to argue that Order 7 Rule 21 leff lout general damages because these are meant to be assessed. I I i He argued Ihat these are left to the discretion of the Court to make the award. He Igrgijed that Order 7 Rule 21 only applies to special damages, aggravated®amages and exemplary damages. I I I hay| considered the arguments made by both parties with great 20. interest an icark I must also mention that in the course of his arguments, counsel Dzwphpnje referred this Court to the decision of my brother judge N’riva, J injithe^case of Victoria Ibrahim and Others vs Ronald Phiri and Others, PerspnaL Injury Case No. 227 by 2018 (HC)(PR). 21. I must quickly observe that indeed in that case, Nriva, J was clear that: I; SI ■ ! “undhr Order 7 rule 6 and 7 of the Courts (High ? I Cour|)(Civil Procedure) Rules, 2017, a defendant is obliged to deal with each fact in the claim and not to give general denial to the claim. If a defendant does not agree with a fact as alleged by a claimant, the defer Slant i ■ happsnec. l! t I mg or is required to provide an outline of what There has to be a real defence, challenging alternatives to what the claimant asserts withe lit providing defence. A general defence is not a b W i 22. 23. defence upder these rules.” The Jpdge proceeded to strike out the Defence. This ' |ourt fully agrees with N’riva J’s treatment of the law in this regard. A c^ reful examination of the Defence herein clearly shows that the Defence feh sho^t of explaining what the Defendant alleges happened if the ■ Claimant’s < (ainis that he was electrocuted in the course of his work at the Defendant’s | factory, and that in consequence he suffered injury and damage, arHnot true. I find that the Defence herein failed to comply with Order 7 rule 17 of the CPR, 2017. 24. I am i Lind ml that in Victoria Ibrahim and Others vs Ronald Phiri and Others, N’rij a, J'declined to allow the Defendant’s to amend the Defence. , . || ! The question that arises in the present case is what would be fair and just under the d kumstances. 25. To an] Iwer this question, it is, to my mind, imperative that I should also considj L the arguments advanced by Counsel Kadyampakeni in relation to Ihe Claimant’s alleged non-compliance with the requirements of Order 7 puli 21 of the CPR, 2017. I must say that it appeared to me that Counsel dzimphonje sought to downplay the requirements of that rule. |l I $ 26. This [Court however refuses to accede to Counsel Dzimphonje’s invitation r I this regard. It is this Court’s view that the equitable principles that the person that comes to equity must come with clean hands, and that a person who comes to equity must do equity, entail, in the circumstances of the present case, that a party who comes to Court arguing that his opponent's case should be struck out and dismissed for failure to dbmply with the rules of procedure, must himself or herself necessarilyimLavs complied with the rules of procedure. There is no equity m coming tb Court and essentially stating to the Court, "I invite you to look to myj ppppnent’s non-compliance but please ignore my own clear non-complf Ince of the same set of rules of procedure because I complained first.” The f yo equitable principles above, namely that he/she who comes to equity mj|st cpme with clean hands, and he/she who seeks equity must do equity, y all surely apply to such an applicant. 27. Furth|r, .(pounsel Dzimphonje contended that Order 7 Rule 21 excludes general damages. I need to quickly mention that I noted that Counsel D^|mpqonje did not argue this point with any demonstrable seriousnesSgpr conviction. The reason, as I see it, is clear. His contention in that regard was incorrect. Order 7 Rule 21 begins by stating that "the claim or cojnter;-claim shall...state the nature and amount of damages sought.” ItlthpA proceeds to clarify that such damages would include "special, aggravated and exemplary damages.” To my mind, a reading that suggests that Order 7 Rule 21 only deals with special, aggravated and exemplary dnmages clearly does violence to the language of that rule. The opening statement is general and it clearly envisages general damages. These are; perhaps some of the nuanced but substantial shifts in procedural i [law'that the CPR, 2017 have introduced, departing from the previous aijprodches under the old rules of procedure. ill IL ■ 28. It isUlea^f that the claimant's prayer for damages and costs under paragraph^ of the Claimant’s Claim does not comply with Order 7 Rule 21 of the CPR, 2017. 29. In vi |v of the fact that both parties failed to comply with the rules of procedu! p, I have, in addition to seeking to do equity, also addressed my mind tqpth^ [overriding objective of the CPR, 2017 under Order 1 Rule 5(1) of the [pules. The overriding objective essentially requires that I must deal with tfese proceedings justly. II 30. s of Order 2 Rule 1 of the CPR, 2017, it is clear that the proceedings!thus far have been characterized by irregularities because of the failure roly bb'th parties to comply with rules, as discussed above. y bbith parties to comply with rules, as discussed above. 31. Accoraing; to Order 2 Rule 2 of the CPR, 2017, an irregularity in a proceeding ’ ar step taken does not necessarily render such a proceeding or step taken . Order 2 Rule 3 of the rules gives the court various options in t rms of the measures it may take to deal with the irregularity. I In thelpresent circumstances, I consider that it is just to order that 32. both partied should cure the defects in the steps that they have taken which have in accordan been] pointed out in the present decision. This Order is made Ie with Order 2 Rule 3(f) of the CPR, 2017. 33. SpeciftaW, I order that the Claimant must amend the Claim so that it is consistSit with Order 7 rule 21 of the CPR, 2017 within 7 days from the date he of; and that the Defendant should file an amended Defence that comp; ps ^ith Order 7 rules 6 and 7 of the CPR, 2017 within 7 days from the d|lte of being served with the claimants amended Claim. iin । 34. Eachlparty is to bear own costs for purposes of this application. Made at Zd ba'in Chambers this 21st day of September, 2020. j _ Y——-- • // Honourabl Kapindu, PhD JUDGE 8