Kandaya v Mbale and Another (Civil Cause 47 of 2022) [2023] MWHCCiv 28 (5 May 2023)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI MZUZU DISTRICT REGISTRY CIVIL DIVISION PERSONAL INJURY CIVIL CAUSE NUMBER 47 OF 2022 BETWEEN:- CHARLES GOODWIN KANDAYA.....ccssssessesscvincsisarccsreccenvennesensssseeneda CLAIMANT AND MR NDAZIONA MBALE..........+.0. (URN omeneanannaneneeay Se EEEVEWINEESS iaenwen 18T DEFENDANT GENERAL ALLIANCE INSURANCE COMPANY LIMITED............. 2NP DEFENDANT CORAM: THE HON. JUSTICE T. R. LIGOWE I Mr. M. Munthali, Counsel for the Claimant Mr. Gausi, Counsel for the Defendant Mr. K. Thadzi, Official Interpreter RULING Counsel for the defendants has attended the mediation with a representative of the 2™ Defendants Manager at Mzuzu but not the 1" defendant. He says the 1% defendant is aware of the mediation today and was ready to come, but he communicated with counsel in the morning that he has failed to travel from Lilongwe to Mzuzu for the mediation because he has had to go attend a funeral of his relative at his home. Counsel therefore seeks adjournment of the mediation to another date. Counsel for the claimant has come with the claimant and he objects to the prayer for adjournment and prays that the defence be struck out and a judgment be entered in favour of the claimant because there is no good proof that the 1 defendant has indeed gone to attend to a funeral at his 10. Ll. home village and who has died there for the court to see if he would not have been excused from the funeral to attend to the mediation in this case. Order 13 rule 6 (1) of the Courts (High Court) (Civil Procedure) Rules allows the court to among others, strike out the defence where it is not practical to conduct a scheduled mediation because a defendant has failed without good cause to attend within the time appointed for the commencement of the session. The court may also order the party to pay costs or make any other order that it deems just. As for adjournment, Order 17 rule 5, which I think should also apply to mediations, allows the court to adjourn a trial at any time for a good reason and endorse the reason on the court record. The question here is whether there is a good reason given by counsel for the defendants to adjourn the mediation to another date or, whether Counsel has not shown a good cause for the 1% defendant’s failure to attend the mediation today. It is a trite principle of law that factual matters need to be proved before the courts by evidence. The reason for the 1% defendants’ absence today is a factual matter and needed to have proof. Evidence before the court always has to be sworn or affirmed by the one giving it. This swearing or affirmation has an undertaking that the deponent if lying, will be liable to an offence of purjury. No sworn statement has been made about the reason for the 1** defendant’s absence today. If the claimant had readily agreed to the prayer for the adjournment, for the reason given, perhaps it would not have been necessary to have a sworn statement. But here, the claimant, through counsel, actually disputes the truthfulness of the fact that the 1 defendant has indeed gone to a funeral. The sworn statement is important. One of the issues to be dealt with at the mediation would have been to see whether the 1‘! defendant by his negligence caused the accident which led to the claimant being injured as he claims in this case, or whether the claimant suddenly decided to cross the road at close range of the 1‘ defendant oncoming vehicle, that he could be said to have contributed to the accident and his injury. These are issues which cannot be discussed between the claimant and a representative of the manager for the 2" defendant. Not even the manager himself. It needed the presence of the 1‘ defendant. And for having failed to show good cause for his absence as there is no sworn statement about his absence today. I adjourn the mediation to another date, because this is the first time, but order the Defendants to pay costs for the claimant’s attendance today and on the next date to be set, to be agreed between the parties and paid before the next date of mediation. If not agreed, to be assessed by the Registrar. 12. The mediation is adjourned to a date to be fixed. 13. Dated this 5" day of May, 2023.