Msungama v Malizani , Telesuprecon Limited, Zoom car hire Limited and Charter Insurance Co Ltd (Civil Cause 289 of 2009) [2022] MWHC 89 (3 June 2022)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 289 OF 2009 BETWEEN KONDIMSUNGAMA.................................................................... PLAINTIFF AND HOLMAN MALIZANI........................................... 1st DEFENDANT TELESUPRECON LIMITED..........................................................................2nd DEFENDANT ZOOM CAR HIRE LIMITED............................. 3rd DEFENDANT CHARTER INSURANCE CO LTD................................................................4th DEFENDANT CORAM: HON. JUSTICE R. MBVUNDULA Tembo, of Counsel, for the Plaintiff Nyirenda, Counsel for the 1st and 2nd Defendants Chipembere, Counsel for the 3rd Defendant Makwinja, of Counsel, for the 4th Defendant Minikwa, Official Interpreter RULING The plaintiff sued the four defendants for negligence. When the matter was called for hearing in open court counsel for the 1st and 2nd defendants informed the court that the parties had had discussions and had agreed that they would not call witnesses and asked the court to enter judgment for negligence and for damages to be assessed by the Registrar on all claims by the plaintiff. This was confirmed by defence counsel, including counsel for the 4th defendant who said: “So far as the liability of the 4th defendant is dependent on that of the lsl, 2nd and 3rd defendants, I confirm”. On the foregoing basis I entered judgment endorsing the parties’ said agreement for negligence, damages to be assessed by the Registrar. The matter did go for assessment of damages and taxation of costs. Subsequent to that the 4th defendant filed before me an application titled “Application for Construction of Policy of Insurance” where it sought a determination whether under the policy of insurance issued by the 4th defendant the said 4th defendant was liable to pay costs in addition to damages. I heard the application and upon considering the same I have formed the opinion that the same was ill conceived for two reasons. The first is that in my judgment I made no order for costs as the issue was not raised by any of the parties. The second is that having delivered my final judgment I became functus officio. On those grounds I dismiss the application with costs. Made in chambers at Blantyre this 3rd day of June 2022. JUDGE 2