Ibrahim, Chisale and Milinje v Phiri, Blantyre City Assembly and Prime Insurance Company Limited (Personal Injury 277 of 2018) [2018] MWHC 1324 (18 June 2018)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY PERSONAL INJURY CASE NO 227 OF 2018 VICTORIA IBRAHIM ............................................... FIRST CLAIMANT AND FUNNY CHISALE ............................................... SECOND CLAIMANT AND ESNART MILINJE ................................................... THIRD CLAIMANT AND RONALD PHIRI ..................................................... FIRST DEFENDANT AND BLANTYRE CITY ASSEMBLY ............................ SECOND DEFENDANT AND PRIME INSURANCE COMPANY LIMITED ................ THIRD DEFENDANT CORAM Justice Jack N'riva Mr. Nkhata of counsel for the claimants Mr. Tandwe of counsel for the defendants Mrs. Mtegha Clerk RULING This is an application by the claimants for the Court to strike out the defence. The reason for the application is that the defence does not comply with Order 7 rules 6 and 7 of the Courts (High Court) (Civil Procedure Rules). The claimants commenced this action claiming damages for negligence resulting in personal injuries. The claimants claim that the defence does not respond to the issues that the claimants raise. The defendants oppose the application and urge the Court to give them an unless order for the amendment of the defence and order. Counsel argued that the issue is non-compliance with the rules. Counsel argues that there are several ways of dealing with non-compliance with the rules and striking out a defence is the extreme case. Further, counsel argues that the claimants have not set out the irregularity they want the court to deal with. In their arguments, the claimants depended on Registered Trustees of Sedam v Buleya [1991] 14 MLR 422 where the Court held that for a defence to be shown on the merits, where the action was for the recovery of a loan, it would not suffice for the defendant to merely deny his indebtedness, unless the grounds on which he made the denial were stated. He ought to have specifically stated why he was not indebted and set out the real nature of the defence relied upon. At 425, the Registrar said: Even if I look at the defence which was served, there is nothing but a bare denial of indebtedness. There are no facts to substantiate the denial. It is not denied that, in accordance with the plaintiffs claim, the defendant had loans with the employer. If there were loans it is not stated that they were paid. If they were paid, the Supreme Court has held in cases similar to this in that in either case there must be an affidavit showing a defence on the merits, that there should be evidence of payment (Hardware and General Dealers v Makaniankhondo Building Contractors MSCA Civil Appeal No. 15 of 1984 (unreported). A mere general denial that the defendant is indebted will not suffice (Wallingford v Mutual Society (1880) 5 App Cas 685 at 704, per Lord Blackbum; In Re General Rail Syndicate, Whiteleys case (1900) 1 Ch 365 at 369, per Lindley MR) unless the grounds on which the defendant relies as showing that he is not indebted are stated. The defendant should state why he is not indebted and state the real nature of the defence relied on. (In Re General Rail Syndicate, ibid). In view of what I said earlier, I am not entitled to look at the evidence but looking at it I do not think it is worth the paper it is on. The defence is evasive. Counsel for the defendants argues that decision dealt with a debt whose implications are different in this matter because the issue in this matter is that of negligence where the claimants have to prove duty of care, breach and damages. Counsel for the claimants argues that although Registered Trustees of Sedam v Buleya was about a debt, the decision deals with a mischief whereby a defendant gives a defence without particulars. Counsel argues that allowing the defendants to amend the defence would be tantamount to allow them to build their case as they go which, he argues, is an abuse of the court process. Counsel argued that the defendants failed to comply with Order 7 rules 6 and 7 arguing that this is not a case of failure as anticipated in order 2 rule 4 of the rules; the defendants have filed no defence. Under Order 7 rules 6 and 7 of the Courts (High Court) (Civil Procedure) Rules, 2017, a defendant is obliged to deal with each fact in the claim and not to give a general denial to the claim. If a defendant does not agree with a fact as alleged by a claimant, the defendant is required to provide an outline of what happened. There has to be a real defence, challenging or giving the alternatives to what the claimant asserts without providing defences. A general defence is not a defence, under these rules. The rules require the defendants not to offer a general defence. Under order 7 rule 6 of the Courts (High Court) (Civil Procedure) Rules, 2017, a defendant shall deal with each fact in the claim and shall not deny a claim generally. Under order 7 rule 7 of Courts (High Court) (Civil Procedure) Rules, 2017, where the defendant does not agree with a fact that the claimant has stated in the claim, the defendant shall file and serve a defence that denies the fact and states what the defendant alleges happened. Much as the decision in Registered Trustees of Sedam v Buleya was about a debt, the principle, that a defendant ought not give a general defence, applies equally in all civil proceedings especially under the new rules of procedure When drafting a defence, the defendants should ensure that they address each of the issues raised in the particulars of claim. The structure of the defence should be such that it responds to each paragraph of the statement of case by either admitting or denying allegations. If an allegation made in the statement of claim is denied, the defendant is obliged to give reasons for the denial and put the side of the story of the defence. Thus, the defendant cannot simply deny a matter without stating how or why he or she or it is making the denial. The rules on Order 7 rules 6 and 7 are in mandatory terms. I believe that where the defence does not amount to a defence, it has to be struck off on the ground that the defence has no prospects of a success. A defence has to be given at the time required by the rules. The Courts (High Court) (Civil Procedure) Rules require the parties and the Court to identify issues at an early stage (Order 1 Rule 5). I therefore do not think that a defendant can give general denials to the claim in the hope of amending the defence or in the hope of giving defence at the trial. There would be no defence and that cannot be said to be a procedural failure to comply with the rules. This goes to the root of the case. Courts have to dismiss such defence. Claimants can even apply for summary judgment for there is no arguable defence (Order 12 rule 25 (2) or that the defendant has no real prospects of defending the claim (Order 12 rule 23 (1)). It is true that the claimants have to prove all the elements of a tort. However, where there is no defence, the Court has to enter judgment. In Swain v Hillman [2001] 1 All ER 91 Lord Woolf MR said that the words 'no real prospect of succeeding' did not need any amplification as they spoke for themselves. The word 'real' directs the Court to the need to see whether there was a realistic, as opposed to a fanciful, prospect of success. The phrase does not mean 'real and substantial' prospect of success. Nor does it mean that summary judgment will only be granted if the claim or defence is 'bound to be dismissed at trial.' What the words mean in that context is that the defence offered does not provide a defence. I, therefore, find that this is not a case where I have to allow the defendants to redo their defence. To allow the defendants to redo the defence is, as counsel for the claimants argues, to allow them to be 'building their case as they go.' In Mike's Trading Group v NBS Bank Commercial Cause No. 78 of 2014, Honourable Justice Katsala makes some apt points and observations under the modern approach to civil procedure rules. One observation the Judge makes is that parties to a case must frame their cases concisely and at an early opportunity. Further, the learned Judge said that the Courts will be increasingly reluctant amendments that change or redefine issues. The Judge observes that to allow amendments that redefine the issues would be to go against the overriding objectives of civil procedure rules of active case management. Accordingly, I find that the defendants have no defence to the claimants' claims. I therefore strike out the defendants' defence with costs. The matter should be set down for assessment of damages. MADE this 18th day of June, 2018 JUDGE 5