Nkambala( Suing on behalf of Yusufu Mkambala, Minor) v Electricity Supply Corporation of Malawi Ltd (Civil Cause 422 of 2020) [2021] MWHC 358 (25 May 2021)

IN THE HIGH COURT OF MALAWI MZUZU DISTRICT REGISTRY CIVIL CAUSE NO 442 OF 2020 BETWEEN YUSUFU NKAMBALA (Suing on behalf of Yusufu Nkambala, Minor) CLAIMANT AND ELECTRICITY SUPPLY CORPORATION OF MALAWI LTD DEFENDANT Coram: Brian Sambo, Assistant Registrar Mr. M. Mnthali, of counsel for the Claimant Mr. M. Banda, of counsel for the defendants Miss T. Chiulika, Official Interpreter/ Court Clerk RULING ON APPLICATION TO STAY ASSESSMENT OF DAMAGES PROCEEDINGS AND TO SET ASIDE A REGULAR DEFAULT JUDGMENT INTRODUCTION This is my ruling following the two applications made by the Defendants, through their counsel, Mr. Mwawi Banda. Firstly, an application to stay assessment proceedings pending an application to set aside a default Judgment obtained by the Claimant on the 16 March 202; awarding damages for pain and suffering and loss of amenities of life, disfigurement, special damages for the Police Report and costs of the action. Secondly, an application to set aside the default judgment pending rehearing under Order 12 Rule 21 of the Courts (High Court) (Civil Procedure) Rules, 2017. When the Defendant was served with the summons, and accepted it on 12 January, 2021, they never filed their defence within the prescribed time, and as a result, a default judgement was entered in favor of the Claimant-awarding him damages as claimed. When the matter was scheduled for assessment on 15 April, 2021, on 13% day of April, 2021 the Defendant filed the above-stated applications. BRIEF FACTS The facts of the case is this simple. On 24th of May, 2017, at about 17.00 hours, as the Claimant's son was going home walking along Karonga-Kaporo M1 Road; at Kafikisira village, was hit by an electric live wire which fell on the ground and the victim suffered injuries as claimed. It was stated that the said wire was not properly maintained and monitored by Electricity Supply Corporation of Malawi. ISSUES The hearing was conducted in order to hear the application to stay assessment proceedings and set aside the Default Judgement. In this regard, the court made the following preliminary questions in order to deal with the application at hand, I. Whether the assessment proceedings can be stayed? Il. Whether the default judgement can be set aside? DETERMINATION I have read submissions/ skeleton arguments made by counsels from both sides opting for and against the application to set aside default judgement and staying assessment proceedings. Wherever necessary, I will refer to them. It is trite in law that whenever a party is making an application to set aside the default judgement and stay proceedings, the requirements under order 12 Rule 21 of the Courts (High Court) (Civil Procedure) Rules, 2017 should be observed. Order 12 Rule 21 of the Courts (high court) (civil Procedure) rules provides the following; (1) A defendant against whom judgment in default has been entered may apply to the Court to have the judgment set aside. (2) The application under sub rule (1) may be made not later than 3 months after the judgment is entered and shali- {a) set out the reasons why the defendant did not defend the application; (b) where the application is made more than 3 months after the judgment was entered, explain the delay; and the Court shall not set the judgment aside, unless it is satisfied that it is in the interests of justice to do so; (c) give details of the defence to the application; and (d have a sworn statement in support of the application. the rules are also clear on the fact that when granting such an Further, application the court should be satisfied that the defendant has shown a reasonable cause for not defending the application and has a meritorious defense, either about his liability of the application or the amount in the application. See Order 12 Rule 21 Sub rule 3 of the Courts (High Court) {Civil Procedure). Admittedly, the defendants made this application within the prescribed period of 3 months since the default judgement was entered on 16 March, 2021. However, there has been no demonstration of a defence on merit as is required by law. As regards meritorious defence, Order 7 rule 6 of the Civil procedure Rules of 2017 provides. A defendant shall deal with each fact in the claim and shall not deny a claim generally. In addition, as provided for in the cited cases by counsel for the Claimant and of which this court does agree, general denials do not suffice as defence on merit. He cited the case of Tereza Maluwa (suing as Administatix of the estate of Feston Mulayi) vs Mulonda and Prime Insurance Co Ltd, Personal Injury Case No. 8 of 2019 where the court found the defendant to have only denied the contents of statement of the case without giving factual explanation of the denials. The case cited Order 7 rule 7 of the Courts (High Court) (Civil Procedure) Rules of 2017, which provides that; 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 defendant alleges the fact and states what happened. He also further cited the case of Jafari Case No 48 of 2017 in which the judge stated that; v Khupe and another, Personal injury 'General denials are detested by the new rules of procedure in contrast to the old rules which the defendant could only deny facts and subject the claimant to strict proof. Under the new rules the courts can struck out helpless defenses' In the present case, the defendant averred to this court that the reason for their delay was that they were investigating the matter and the results of their investigation yielded that that the accident never happened and they could not, therefore accept liability for an incident that they have no idea about and which was not reported to them. In their statement of defence, the defendant indicated that ESCOM do properly maintain their electricity wires and constantly monitored them, that none of the live wires could have fallen on the ground and hit the minor in issue. The foregoing is nothing but a general denial. Moreover, what puzzles this court further is that, in the same statement of defence, the defendant further indicated that 'In alternative, if the accident ever happened, then it was as a result of the claimants own fault by letting the minor walk close to electricity poles well knowingly that they carry live wires'. This statement puts this court in quandary because if the defendants indeed carried out the investigations as claimed and found out that the same never happened, then they would not have stated that because they well knew that the same never happened. This completely shows that the defendant were unsure of what really happened on the fateful day. It simply explains that they never carried out any investigations or if the the same were insufficiently and incompetently done. Even investigations, though they are claiming contributory negligence on the part of the claimant, what they have provided is nothing short of general denial. This is not acceptable. they did happen to conduct By reason of the foregoing, the defence is struck out and the application made by the Defendant fails entirely. In other words, I dismiss the applications with costs to the Claimant. Accordingly, this court proceeds with the assessment of damages, scheduled to take place on the 10t of June, 2021 at 9 o'clock in the forenoon, It is so ordered Made in chambers today Monday 25% May, 2021. ian Sazfibo A is a istrar 6