Mkwapatira v Jiang & Anor. (Personal Injury 684 of 2017) [2018] MWHC 64 (22 May 2018)

Chikondi M kw apatira v. W enxing Jiang & Prime Insurance Com pany Ltd Kenyatta Nyirenda, J. Clift th ‘ \V4v5 ^ — JUDICIARY IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY PERSONAL INJURIES CAUSE NO 684 OF 2017 BETWEEN CHIKONDI M K W APA TIRA .............................................................. CLAIMANT MR WENXING JIA N G ............................................................... 1st DEFENDANT PRIME INSURANCE COMPANY LIM ITED ...................... 2nd DEFENDANT AND CORAM: THE HONOURABLE JUSTICE KENYATTA NYIRENDA Mr. Mwabungulu, of Counsel, for the Claimant Mr. Chikaonda, o f Counsel, for the Defendants Mrs. Doreen Nkangala, Court Clerk ________________________________ RULING________________________________ Kenyatta Nyirenda, J. This is my ruling on the Claimant’s application for an order that the Defendants’ defence be struck out for non-compliance with Order 7, r.6, and Order 5, r.8, of the Court (High Court) (Civil Procedure) Rules [Hereinafter referred to as “CPR”]. The background to the application is of the simplest. On 18th December 2017, the Claimant issued a summons against the Defendants and the Statement of Case reads as follows: “1. 2. A T A L L M A T E R IA L T IM E S the 2nd defendant was the insurer o f m otor vehicle Registration num ber B T 2305 Hino Van w hich at all m aterial times being driven by the 1st defendant herein. O N O R A B O U T the 20th August, 2017 the 1st defendant was driven the motor vehicle aforesaid fro m the direction o f Limbe heading towards M akhetha on Chikondi M kwapatira v. W enxing Jiang & Prime Insurance Com pany Ltd Kenyatta Nyirenda, J. Lim be - M achinjiri R oad w hen at or near Peletia Bus stage the 1st defendant so negligently drove the m otor vehicle aforesaid that he caused or perm itted the same to hit the claim ant who was on the nearside dirty verge o f the road. 3. T H E A C C ID E N T O C C U R R E D due to the negligence o f the 1st defendant in driving m anaging and controlling o f the sa id m otor vehicle. a. b. c. d. e. f. g. Particulars of the negligence D riving too fa s t under the circum stances/over speeding; F ailing to stop or in any other way so to manage or control o f the motor vehicle or to avoid the accident; Failing to exercise or m aintain proper o f effective control o f the motor vehicle; F ailing to see the claim ant in sufficient time to avoid colliding with him; C olliding with the claimant D riving w ithout due care and regard to the presence o f the pedestrians on the sa id road; F ailing to stop, slow down or in any other w ay to manage or control or to avoid the accident. h. Res Ipsa Loquitor 4. B Y R E A S O N o f the m atters aforesaid, the claim ant sustained injuries and thereby suffered loss a n d damage. Particulars of the injuries a. b. c. d. a. b. Fracture o f the left shoulder D islocation o f the left shoulder Blunt chest traum a A brasions Particulars of Special damage M K 3,000.00 cost o f police report M K 10,346. OOcost o f m edical report Chikondi M kw apatira v. W enxing Jiang & Prime Insurance Com pany Ltd Kenyatta Nyirenda, J. 5. T H E C L A IM A N T pleads that the 2nd defendant is liable to com pensate the claim ant fo r the negligence o f the 1st defendant on indem nity basis as insurer o f the m otor vehicle. A N D T H E C L A IM A N T claims; a. b. c. d. e. D am ages fo r pain, suffering a n d loss o f am enities o f life; D am ages fo r deform ity a n d disfigurement; M K 3,000.00 cost o f police report; M K 10,436.00 cost o f m edical report; Cost o f the action. ’’ i L On 6 February 2018, the Defendants filed the following Defence: “1. Paragraph 1 o f the Statem ent o f Case is adm itted in as fa r as the 2nd D efendant being insurers. 2. 3. 4. The particulars o f negligence, injuries an d special dam ages contained in paragraph 2, 3, 4 a nd 5 o f the Statem ent o f Case are denied a nd the D efendants p u t the C laim ant to strict p r o o f o f the same. The 2nd D efendant pleads that its liability, i f at all, w ould be subject to ow ner o f the m otor vehicle herein being fo u n d liable fo r the C la im a n t’s injuries resulting fro m the use o f the sa id m otor vehicle a nd that such liability i f any w ould be subject to lim it under the law and policy. SA VE as hereinbefore admitted, the D efendants deny each a n d every allegation o f fa c t contained in the statem ent o f claim as i f the sam e were set out herein and traversed seriatim. ” The application is supported by a sworn statement by Mr. Tusume James Mwabungulu wherein he deposes that (a) the Defence consists o f general denials contrary to Order 7, r.6, o f CPR and (b) the Defendants did not file a sworn statement verifying their list o f documents contrary to Order 5, r.8(a) o f CPR. Order 7, rr. 5, 6, 7, 8 and 9 o f CPR deals with how a defendant should address allegations contained in the claim and these rules provide as follows: “5. Where the defendant intends to contest the claim, the defendant shall file and serve a defence on the claim ant within the p erio d required by Order 5 Rule 7 (2) (b). Chikondi M kw apatira v. W enxing Jiang & Prime Insurance Com pany Ltd Kenyatta Nyirenda, J. 6. 7. 8. 9. A defendant shall deal with each fact in the claim a n d shall not deny a claim generally. Where the defendant does not agree with a fact that the claim ant has stated in the claim, the defendant shall file and serve a defence that denies the fact a n d states w hat the defendant alleges happened. Where the defendant does not deny a particular fact, the defendant shall be taken to agree with that fact. Where the defendant does not know about a particular fact and cannot reasonably Emphasis by find out about it, the defendant shall say so in the defence. underlining supplied Order 5, r. 8, o f the CPR states that a defendant shall serve the defence together with a list of documents verified by a sworn statement and have copies o f the document on the list. The Defendants filed neither a sworn statement nor skeleton arguments in opposition to the application. Counsel Chikaonda conceded that the Defence contains general denials but stated that this was done to put in place a “holding defence ” as he was still waiting to get particulars from the Defendants regarding the accident. Counsel Chikaonda also admitted that the Defendant omitted to file a sworn statement verifying the list of documents. Counsel Chikaonda concluded his submissions by seeking permission to amend the Defence and to file a sworn statement with respect to the list o f documents. I am not persuaded by the reasons advanced by the Defendants for their opposition to the application herein. The filing o f the so called “holding defences” is no more than a time-wasting practice which has hitherto belaboured the Courts and seriously hindered the efficient delivery o f justice. Such a practice can no longer be tolerated under CPR: it has to be eliminated. In terms o f Order 5 o f the CPR, a defendant intending to contest the proceedings has a maximum period o f (a) 14 days from the date o f service o f the summons on him or her within which to file a response and (b) 28 days from the date of service of the summons on him or her within which to file a defence. To my mind, 28 days is more than enough time for a defendant to file and serve a defence, more so for a straight forward personal injury case like the one before this Court. In any case, a defendant who wishes to be given more time has to make an application for that purposes before the expiry o f the time periods stipulated by Order 5 o f the CPR. Chikondi M kwapatira v. W enxing Jiang & Prime Insurance Com pany Ltd Kenyatta Nyirenda, J. In the present case, the summons was served on the Defendants on 24 January 2018. This means the time limited for filing and serving a defence expired on or about 28 February 2018. I, therefore, do not understand why the Defendant chose to still hold onto the “holding defence” for another four months (hearing of the application took place on 18th June 2018). th By reason of the foregoing, the Claimant’s application is allowed. Accordingly, the Defendants’ defence is struck out and judgement is entered in favour of the Claimant. It is so ordered. Pronounced in Court this 22nd day of May 2018 at Blantyre in the Republic of Malawi. Kenyatta Nyirenda JUDGE 5