Cassim v Ridgeview Investment and Others (Personal Injury Case 323 of 2014) [2015] MWHC 513 (13 July 2015)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI ZOMBA DISTRICT REGISTRY PERSONAL INJURIES CASE NUMBER 323 OF 2014 BETWEEN IBRAHIM CASSIM, .....cccccccrcsenannenenneccnncaresueeneueesanraenenpaneeenreneeagea peuaneee earner ipeaneeeenanese PLAINTIFF AND RIDGEVIEW INVESTMENT. .........c:.cscscccecceunnesenecnseousseaenensceeaueuateareaeeaueceseeceansanes 157 DEFENDANT PRIME INSURANCE COMPANY LIMITED.......scssresserencrreesurenesseurnasaeeeeueauscneseareaes 2N° DEFENDANT SAHAL TRAN,......cccccscencereecnesneeenensercersseseacenenaneaeneeenecnaceaneeusaperacaacanaeeansennetenas 3°° DEFENDANT Coram: H/H Jean Rosemary Kayira Assistant Registrar Ibrahim Cassim Plaintiff (Represented) Ridgeview Investment 1% Defendant (Represented) Prime Insurance Company Limited 24 Defendant (Represented) Sahal Iran 3 Defendant (Represented) Counsel Mr. Kayikani Chakuwawa of Counsel for the Plaintiff Counsel Mr. Burton Mhango of Counsel for the Defendants Mr. Tepeka Court Clerk and Official Interpreter INTRODUCTION This is the Plaintiffs application to strike out defence under Order 18 rule 19 of the Rules of the Supreme Court and under the inherent jurisdiction of the Court. Counsel Kayikani Chakuwawa who appeared on behaif of the Plaintiff submitted that he had filed two Affidavits in support of his application and skeleton arguments. He entirely adopted them. The defence objected to the adoption, tendering and admissibility of the two Affidavits from the Plaintiff's side. This objection was pursuant to Order 41 as read with Order 18 rule 19 sub-rule 2 of the Rules of the Supreme Court. The main argument was that the Plaintiff has exhibited documents which have evidence and that is not allowed under Order 18 rule 19 sub-rule 2 of the Rules of the Supreme Court. Counsel Burton Mhango submitted that the Plaintiff is trying his case through the backdoor. In response Counsel Chakuwawa submitted that evidence is not admissible only in relation to the first ground. However, the other grounds on which they have made their application allow production of evidence. Counsel Mhango maintained that all the four grounds under Order 18 rule 19 of the Rules of the Supreme Court are leading to one point which is that there is no reasonable defence. The Court should guard against admitting evidence in this application which could have been tested through cross examination at trial. This Court overruled the objection and the hearing on the summons to strike out the defence proceeded. In his submission, Counsel Chakuwawa adopted the two Affidavits and skeleton arguments in support of his application. As for Counsel Mhango, he adopted his Affidavit in opposition to the application with one amendment on the skipped page. The Court granted his prayer for an amendment. Counsel Mhango submits that the jurisdiction to strike out a pleading is exercised in situations where the case is so clear meaning that where there is a doubt the Court cannot exercise its power to punish the party. The Court’s discretion extends to make orders which are necessary. It can order the defecting party to file a non- defective pleading or may stay the Plaintiff's case. Here it applies to the Defendants’ case to amend the defective pleading. This applies to an endorsement meaning that it is not mandatory that the power be exercised regarding the whole pleading. The Court can either direct an amendment on that part which is defective. He argued that in case the Court finds that the defence is defective, the Court can direct that the Defendants amend the defence. Counsel submitted that justice can only be done or achieved if parties are allowed to argue their case through trial. His argument is that the interest of justice will be done if the case is determined on merit. Counsel further submitted that the application has come late. The application was to be made promptly and preferably before the close of pleadings. In the case of Wills Cross vs Earlhowe the party had taken further action, it was presumed that it was a waiver. In the present matter, the pleadings closed long time ago. The Plaintiff was at liberty to take summons for directions which were taken in May. The Plaintiff and the Defendants filed list of documents and the case is to proceed to trial. On the basis of Cross vs Earlhowe, this is an application which has come too late and should not be entertained. The defence argued in the alternative and the rules allow that parties can argue in ihe alternative. The mere fact that the pleading was distinctively pleaded is not an embarrassment to a party or a sham where distinct clauses are pleaded. The principles are more applicable on cause of action or statement of claim. He therefore argued that the defence cannot be said to be a sham because it is distinctively pleaded. He argued that if given an opportunity the Defendants will object to the tendering of the documents. For instance the defence which is being attacked denies the negligence on the part of the Driver. The Plaintiff is basing its argument on the Police report and they are concluding that there was negligence. However, the said report was authored by a person who never witnessed the accident. If the Court finds that there is inconsistency in the defence, it may make an order for an amendment even if the Court strikes out part of the defence it should not enter a default judgment because that is harsh to the Defendants. The Defendants have evidence in this case and the Court should not take an approach that does not allow them to adduce the said evidence. Counsel Mhango finally prayed that the Court should dismiss the application of the Plaintiff and if necessary make directions if there is need for amendments. In response Counsel Chakuwawa submitted that the evidence adduced in the application is admissible (Order 41 as read with Practice Note 18/19/8 of the Rules of the Supreme Court. On the issue of time for this application, Counsel Chakuwawa agreed that the application should come upon service of the defence as a general rule. However, where the application comes where pleadings have been closed, the same is entertained as per Tucker vs Collinson. Further the same application can be entertained even when trial has been set down but if it comes at a time when the trial has been set down, as a general rule it must be heard. However, where there are exceptional circumstances, it can be heard on the day of trial’. So the application herein has come at a time when trial has not even been set down. It is Counsel's submission ‘Halliday vs Shoesmith [1993] 1 WER 1 that this is not too late regard being to the cited case. Under Order 2 rule 1 of the Rules of the Supreme Court bringing an application outside time is regarded as an irregularity. It is only where prejudice has been proved when the Court can consider whether or not to strike out the defence. It is Counsel's submission that this irregularity is curable and he prayed in the alternative that should the Court be of the view that the application has been brought late, the same is curable under Order 2 rule 1 of the Rules of the Supreme Court, He prayed that the Defendants have not shown any prejudice occasioned on their part by this delay in bringing the application. He further submitted that the Plaintiff has suffered prejudice because of the way the defence has been drafted. He further argued that this is a proper matter where the Court can strike out the defence. He said that the right procedure is for the Court to strike out the defence where it is found that it is a combination of traverses and specific denials as is the case here where the Defendants are denying that the accident happened; they deny that the driver drove this material vehicle yet there is evidence that the same was driven by this driver. Counsel Chakuwawa further submitted that as a general rule pleading in the alternative is allowed and not every pleading in the alternative is embarrassing. However where alternative pleading leads to obscurity, the same amounts to embarrassment. The defence which is a mixture of issues is an embarrassment and this is the basis for the application to have the defence struck out. He submitted that it is not only in clear and plain cases where defence should be struck out. His argument is that the Court can strike out the defence where the soundness of the arguments is prolonged. Further where the Court is satisfied that striking out the defence will substantially reduce the burden of preparing for the defence, it will strike out the defence more especially when it is a sham. He finally prayed that the defence discloses no reasonable ground, itis frivolous, vexatious and embarrassing, it is an abuse of the Court process and is a proper case where everything is denied and therefore making it a proper case fo apply for defence to be struck out. He submitted that the defence and the defending of the matter is done with ulterior motives and prayed that the said defence be struck out and judgment be entered in favour of the Plaintiff. The matter resumes today for ruling on the summons to strike out defence. tS UR Order 18 rule 19 of the Rules of the Supreme Court states as follows: “The Court may at any stage of the proceedings order to be struck out or amended any pleading or endorsement of any writ in the action or anything in any pleading or in the indorsement on the ground that: It discloses no reasonable cause of action or defence as the case may be; or it is scandalous, frivolous or vexatious; or It may prejudice, embarrass or delay the fair trial of the action; or It is otherwise an abuse of the process of the Court and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be”. | am aware that not every pleading which offends against the rules will be struck out (Order 18 rule 19 sub- rule 1 of the Rules of the Supreme Court). This Court also bears in mind that the discretion under Order 18 rule 19 of the Rules of the Supreme Court has to be exercised judiciously and sparingly. The first question worth considering is whether there is a reasonable defence with prospects of success. | have had an occasion to read the defence filed by the Defendants. It raises issues of contributory negligence. To this Court, that is a triable issue which needs to be determined on merit. Therefore, | find that there is a reasonable defence. The second point of consideration is whether the defence is frivolous, scandalous or vexatious. On this point, this Court agrees with Counsel for the Plaintiff that the defence has not clearly shown what they are admitting to and what they are denying. They have even denied that the Plaintiff sustained injuries yet they are saying that the accident was because of contributory negligence of the Plaintiff. The defence even denies that they are an insurance company registered under the laws of Malawi. Counsel Mhango argues that the defence has distinctively argued their defences. This Court finds difficulties to appreciate such an argument. It is not an issue of distinction and innovation here. The style of drafting adopted or used in this defence defeats the very essence of fair trial where all issues have to be clear so that those in contention can be pursued. In this particular case the defence has generally denied all the allegations of the Plaintiff save for one specific issue of contributory negligence. Apart from generally denying the allegations, the defence has limited its liability to the driver and insurer being found liable. This makes one to wonder whether they are sure as to what they want. Further it is against common sense to talk of limited indemnification and liability when on the one ambit you are denying insuring the driver and material vehicle. Since there are these inconsistencies, | direct my mind to Order 2 rule 1 of the Rules of the Supreme Court which states as follows: “Where in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein. Subject to paragraph (3) the Court may on the ground that there has been such a failure as is mentioned in paragraph (1) and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings or any document, judgment or order therein or exercise its powers under these rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit. The Court shall not wholly set aside any proceedings or the writ or other originating process by which they were begun on the ground that the proceedings were required by any of these rules to be begun by an originating process other than the one employed". The understanding of this Court is that Order 18 rule 19 of the Rules of the Supreme Court which is discretionary has to be invoked in cases which are obvious that there are no triable issues. This is why the law is settled that before a Court exercises its coercive power under this order, it has to be satisfied that there is no injustice to be occasioned to any party once this power is judiciously exercised*, In a way to safeguard outright striking of defences or any pleading, Order 2 rule 1 of the Rules of the Supreme Court has provided for remedies. These two orders aim at promoting determination of matters on merit. It is prudent therefore to allow the defence to be heard. To that extent, this Court denies the application to strike out the defence. It is the direction of this Court that the defence which is inconsistent has fo be amended especially paragraphs 1, 2, 6 and 10. Such an amendment has to be consistent with the other paragraphs and should be clear. This must be done within 7 days from today. Counsel Mhango submitted that this application has come too late since defence was served in October 2014. He further argued that the Plaintiff went on and obtained directions. The maiter is to proceed to trial. The record is clear that a specially endorsed writ was issued on 7" October 2014. The defence was served on 17 October 2014. Thereafter there was mediation on 14° November 2014 which was terminated and 2Kemsley vs. Foot and others [1951] 2 KB 34 and Practice Note 18/19/3 the matter was referred to Court for continuation on 17" April 2015. Subsequently, the Plaintiff obtained directions on 19" May 2015. It is after directions were made that the Plaintiff has now made this application. Practice Note 18/19/2 of the Rules of the Supreme Court states that where the defence or other subsequent pleading is being attacked the application should be made as soon as practicable after the service of such defence or pleadings. The application may be made even after the pleadings are closed.? The question therefore is, was it not practical to make this application after service of defence? To this Court, the fact that the Plaintiff applied for directions which were granted means that this application would have been made either before or together with the application for directions. The time that has elapsed from service of the defence to now is considerably substantial. In my view allowing this application would not be fair in the circumstances. On this basis this Court denies the application to strike out the defence. PRONOUNCED IN CHAMBERS ON aw 2015 @10AM H/H J. RJKAYIRA | // : Yi? ASSISTANT REGISTRAR-HIGH COURT 20MB ISTRICT REGISTRY Se 3Tucker vs Collinson (1886) 34 W. R. 354.