Kulesi v Royal International Insurance Co. Holdings Ltd (Civil Cause 395 of 1993) [1993] MWHCCiv 41 (29 July 1993)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NUMBER 395 OF 1993 BETWEEN: M HA KULES! . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . PLAINTIFF and ROYAL INTERNATIONAL INSURANCE HOLDINGS LTD ..... DEFENDANT CORAM: JANE MAYEMU ANSAH (MRS) ACTING DEPUTY REGISTRAR R J Mhone of counsel for the Plaintiff J M Banda of counsel for the Defendant RULING By a contract of insurance entered by th e parties on 1st may 1992, clause 9 provided that; to reffered to be appointed if they cannot agree upon "All differences as to amount arising out of this the decision of an policy shall be Arbitrator to be appointed in writing by the parties in difference, or a single Arbitrator to the decision of two Arbitrato rs the one parties within calender month after having been required the parties or in case the Arbitrators before entering the upon Arbitrators and preside at their meetings and the making of an award shall be a condition precedent to any right of action against the insurers." The Umpire shall sit with in writing by each of to do by either of in writing so reference. The defendant in pursuant to the above quoted clause and section 6 of the Arbitration Act (cap 6:03), is seeking for an order that all further proceedingsin this case be stayed. The facts of the case are that the parties entered into a Th e plaintiff was . covered by an contract of insurance. 1.nsurance of money policy issued by the defendant ·to the plaintiff . That policy contains an arbitration clause. The plaintiff has suffered loss of actual cash through a theft The parties have exchanged that too k place at his shop. an letters agreement . he appointed an arbitra tor but the defendant, did not show any willingness to court. Mr Banda lawyer has argued that the correspondence between the parties was merely an effort to have the matter settled and does not indicate or show any unwillingness on the part of the defendant to appoint an to the plaintiff's contention to have him, hence the matter was since November the defence reach that last year trying taken It is 2/ ..... . - - I hav e l o ok e d at the par t ie s . th e exhibits by Mr Mhone , c1 r bi tr a to r. t h ey consist of the corresp o n de n ce Jawyer for the plaintiff , i ndccd be tween these letters were an effort to reach an agreement . • In fact is wit h out o n e of p r e judice letter . Therefore the position of the d e f endants c annot the the c on tr art _is the case of Bruce Limite d Versus- Strong the lear n ed Judge s a id: the letters dated 23rd November 1 992 I agree with Mr Banda that rondi t.1 on prercde n t. . letter s . Clause influenced by 9 of In b e a 1 s necessary whatever v ie w 1 s taken " an arbitra to r r o n di Li on because an award by to r e r over that pr e ced e nt claim be sum e ntitled . . . . but it ha s never re fu se d to st ay action wh e re to that a r bitrati o n where an award i s a condition pr eredent. " cl e f e ndant ' s to whirh the arbitrator is a the case mus t to money is obvio u s r igh t th e y the it go of to i s Th e re r aised . e x te n sio n. a rbitr a tion i ncident . t hat: an o th e r p oint which The questio n of the pla i nt i ff ' s coun sel hz-is its The arbitration clause provides that th e time of is within one mo n th from the ocruranr e of the ( 2) of the arbitration Art provides Sect.ion 14 l i mitation of time a n d t.ime , if a n y Limited for mak .i ng an award. wh ether " The under t.hid Art or otherwise , may fr o m time t o time be e n larged by an order o f the court , wh ether t h at ti me has expired or not ." In th e matter where there is a demand for arbitra t i on , as long as the applicant s h ows readiness and wil l ing n ess to do is required fo r a n arbitration it is only right to a ll th a t Sect.ion 14 ( 2) provides s tay p r or e edings for that purpose . t hat t he court has power to extend time o therwise it would g iv e c hance to the other party to wait for the elap se of the t i me issue a writ and use the time lim it as an I am satisfied that the plaintiff ' s conten t.ions are e xcus e . no t su f ficient. for me to refuse stay of t h e action . I allow t h e d e f e ndant ' s a pplication . th e n a nd Mad e i n chamb e r s this 29 day of July 1993 Mh one : Court : c{,~/v~v-.96~ Ja n e Mayemu Ansah (Mrs) ACTING DEPUTY REG I STRAR Can I appeal? How soon can yo u get a Judge? You may appeal to a Judge in Ch ambers . The long vacation is coming nex t week therefor e wo ul d take to find a Judge. I cannot tell how l on g it