Soko v Chisale (Civil Cause 760 of 2020) [2022] MWHCCiv 47 (24 February 2022)

See fle Be REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY CIVIL DIVISION CIVIL CAUSE NUMBER 760 OF 2020 BETWEEN DINGANE SOKO oo .cccccececccee ae voeeeaeeeteueeeersneseesestenessuess CLAIMANT | AND NORM \N CHISALE....... ce weve esaa aaa eaaeaeeneeeseeeeeeeeeeees DEFENDFANT CORAM —: HONOURABLE JUSTICE WILLIAM Y. MSISKA Mr. I. B. Soko, of Counsel, for the Claimant Mr. C. Gondwe, of Counsel, for the Defendant Mr. BF. Dzikanyanga, Court Clerk RULING This is © Ruling of the Court following the hearing of an application to strike out Ine defe -e for not disclosing any reasonable defence and for being irregular as it has cont: -vened the provisions of Order 7 Rules 6 and 7 CPR 2017, The Claimant commer. cd proceedings against the Defendant claiming damages for false onpriso:. vent and assault. He also claimed aggravated and punitive damages. i|fage ‘ccordi to the statement of case (claim), on 22’ November, 2018, the Claimant was dr Ng around the roundabout which connects Mzimba Street and Paul isagame. | tiphavay. While so diving, the Defendant with his motor vehicle entered into (he. undabout in violation of the Claimant’s right of way. Phe Cle sant politely expressed his disapproval of the unbecoming, reckless and untawli’ conduct of the Defendant and thereafter went to his office at Area 47, The Hefend: i followed the Claimant to his office where he assaulted him by drawing - ipuna:. threatening to discharge it. This episode caused the Claimant to fear for en imme. tate allack upon himself. | ihe Clhoonant was subsequently unlawfully detained by police from Lingadzi olice S ction for a period of over three hours at the directions of the Defendant. The Ch nant was then released at the direction of the Defendant. The actions of ihe Def-dant were actuated by spite towards the Claimant who was humiliated in ihe pres vice of his workmates and colleagues. The Claimant further alleges that ihe Det adant was motivated in his actions by the fact that he was at that time security side to a silting head of state by which fact he thought he could conduct sunself :. being above the law. The De: ndant filed a statement of case (defence) in which he denied all the facts as allege. in the stalement of case (claim) and stated that all the claims are also denied. | ne Defendant concluded his statement of case (defence) by stating that except for the facts in the statement of case (claim) which he had admitted to, he denies © ch and every allegation of fact contained in the statement of case(claim) ns if ea. : one were specifically denied one after the other. Hence, the application io strike oul the statement of case (defence). 2|Page ededl¢ ‘JINOD JY} YA PO|IJ 0} POPUITU SBAA YOY OOUAJOP Be UOLYSE! oO] poseuvul pry oy Jey} SoUdTOp OY} INO SYS 0} uoneordde OY] BULIBOL sop OLE oy) pun dn aouayep ay} JO sievpnonted Fayjoq puve soujINy YIM 1OUOIYORA "day Ste YsIuny 0} afqeun useq sey ay] sansst Aju] pue [euossed Jayjo puv ‘spas. pues asa} JO Nsai @ SY “ONOg IME[RIAL otf] JO UOT}OOS pneiy pue jest.) oua pur APIOUINY Suds I[fayuy [BIouRBUL, ot) ‘neomg uoNdnog-nuy oy) Aq suol SysoAti Surosuo sy] oO] BSuipueye osje pue Apadoid sm jo airgoppoy . iaApoatl IgyVUl B UO JESU pUdjep O} peY sel] JUepUdfocy oy) WY) paLioaR ov -wayPny ‘aMBUO[T] UL soR[d BUDE] SBA YOIYAA OJLOI, 109 EU poureu uosied & Jo uoTeUOsIeduH Jo oSreyo oy] UO 9UO JOYJO oY) puke put uquny ur sovyd Sune] sem Yorym jspinut pajdusye Jo aBieyo oy) uo soseo vuLUie OM] Ul jJposuly Surpusyop Asnq sem Juvpuayac] oy “[leq uo osvapor — {| oouty ‘OZOT “Jaquiaydag Jo pus YOU puno.te freq UO pasvofer AjUO sem JuRPL. ocy out ‘suoedalye oy] jNOqe JUepuayjaq] at} Wo siepnoied rayeq pur ay you QO} JastINOD IO] YMOYTIP sea yf ‘sIsuONHOBAg [eBar] sty uo POAIOS DOM» LULLELLS Ol] PUB JOPINUI O} prey WoL ZuBueL sos iwyO [BIDADS UO UOSLig ene}. Kpoysn. Uy SBM JUBPUSJacT OY) pansst SuTog seM SUOLILNG otf} SU oY) Je IVY p..2Is sey; — “aMpUuoy jesunog Aq Opeut JolUs}eIS WomMs B Ysnos posoddo st uoyvo: ide oy | ‘uoneordde or Jo yoddns' ur squaumae uojya]oy8 por . “BULLE 9 ou] ‘SS0JOYMOASN “HNO ay] 0] UMOUY Apearye ote UOreordde oy) ul uo p. of spor; ay} 10 GyBtos BUl9g JOpio ay] SuNyBWU UE paploap oq 0} poou pLY] JORJ JO. coNsonh Ou ale a1oty yey} o4e spunords omy au, ‘spunoy3 OA\] UO HOWIOTBIS Uh ws AG pazioddns oq 0} JOU SIoplo Aro NIOpaWW oJ suoMBoTdde smoye yoy (6 pf [Ny Qf LOpIQ UIA souRpsosow UT apettr se aoUazap ayy yo syins OF UOHRS! de. oy y li wa: itso averved that the Defendant has a meritorious defence which has all the prosp: 's of success and that it is the intention of the Defendant to vehemently defense ‘he proceeding in order to be exonerated of any wrong doing. It was stated that a. catt copy of the defence was exhibited to the sworn statement, The view of the D. ondant is that the proceeding should be determined on merit and not on mere! ~hnicalities Lastly. :t was stated that unless the Defendant is allowed to file an amended: defenc he shall suffer injustice. in bis oral address, Counsel Soko. started by saying that the statement of case (Clain: is detailed and makes specific factual allegations while the statement of ease (C icnce) only contains general denials and no attempt has been made by the Deen alto deal with the factual claims raised and offer his side of the story as to what rc -ily happened. In order for the defence to be saved from being struck out, ihe tes! «9 be used to that the defence must reveal prospects of success and it must also cay with il some degree of conviction. The defence in the present proceeding does ne comply with Order 7 Rules 6 and 7 CPR, 2017. In circumstances where a stateme-' of case (whether claim or defence) does not comply with ptovisions of Order PR it should be struck out. in resp--isc, Counsel Gondwe just repeated all what is contained in his sworn slateme ' in opposition and urged the court to direct that the Defendant be heard through ‘ic amended defence. in reply Counsel Soko made a number of observations. The first one was that the sworn s: -cment in opposition does not have the purported copy of the draft of the amende. defence exhibited. Secondly, it was his observation that invariably, 4|Page (Ourise perplex: It as the the defi it was chent | approas done."| strike ¢ defence Hpor Cus had wit an app = the del: dO So. The las found | works on the basis of instructions received from client and it is therefore ip, as how the defence which is the subject of the application was prepared. ‘fore safe to state that Counsel sat down with his client and came up with ece the subject of the present application. is further observation that Counsel for the Defendant conceded that his ss been on bail for closé to a year within which period he could have sd the court for an amendment to the defence. However, this has not been : last observation was that in spite of being served with the application to “ defence, the Defendant never sought leave from the court to amend the The requirements under Order 7 rule 23 CPR 2017 is to the effect that sure of statement of case, an amendment to statement of case can only be the permission of the court. It is unreasonable and inappropriate to make ation to amend the defence as an answer to the application to strike out sce, The court was urged to ignore it as it has not been properly moved to eoverning the formulation or preparation of a statement of case is to be Order 7, CPR, 2017. According to rule 1, a statement of case shall— a. Set out the material facts between the parties, as each party sees them, but not the evidence to prove them; b. Show the areas where the parties agree, c. Show the areas where the parties disagree that need to he decided by the Court; d. Be as brief as the nature of the proceedings permit; e. Identify any statute or principle of law on which the party relies, but not contain the legal arguments about (he statute or principle; , 5|Page 1 dralting coumer Pypes O contain the deft with an. 1 defen: This Cc. ight of fhat the materia, eporatic: pula de huNclo in the ¢. COUT hi: under Ik Ho shou = [ Where: the party is relying on customary law, state the customary law; : | : g@. State specifically any fact that if not stated specifically, if would take another party by surprise; and , h. Where the statement of case was prepared by a legal practitioner, state the name and address of the legal practitioner. be acknowledged that the above reproduced provision applies to the ol all types of statement of case, that is to say, claim, defence, reply and ‘aim, Regardless of the general provision governing the preparation of all datement of case, rules 6 and 7 specifically address what a defence should ‘ule 6 requires a defendant to deal with each fact in a claim and prohibits dant from denying a claim generally. Where the defendant does not agree fact stated in the claim, then rule 7 requires the defendant to file and serve - that denies the facts and states what the defendant alleges happened. +t has given careful consideration to the submissions by both Counsel in -e law on how to formulate a statement of case. The Court wishes to state les requiring, that a statement of case must contain a concise statement of ‘acts in support of the any claim or defence is a pivotal centerpiece to the ofa fair and just system of adjudication. The power of the court to strike ‘nce for failure to comply with this rule is therefore a critical gatekeeping vhich must be carried out seriously and diligently. “rent scheme of things, it is important to note and understand that the CPR revolutionalised practice and procedure in civil matters. For that reason, je 6, a simple traverse or general or bare denial is not allowed contrary to 6|Page what woos require: simple adequa the poi “Purnin: slaleimc mest Te the casc under the Rules of the Supreme Court. Rule 7 effectively ihat a defendant respond by way of confession and avoidance. As such, a ~ bare dental of the facts alleged by the Claimant will no longer suffice as statement of case, The clear intent of rule 7 is to require a party to address or points of substance in‘his statement of case. io the present application, I fully agree with Counsel Solo that the - of case (defence) does not comply with the requirements ofthe CPR in eects. In the case of Airtel Limited »y Komiha and Others Miscellaneous Crit Appeal Number 59 of 2013, the Supreme Court of Appeal made the rollown tae “has been argued that rules of procedure are there to facilitate the smooth tne fats. ; nave lo fhe adi prefudi The De ~ containe. second iny cor iefence hor the ce The det. properly proceed: observations about the importance of rules of procedure-— . Jisposal of the case. Whilst this is correct, it is a requirement that they » complied with, Any departure without good cause would create chaos in ustration of justice. Similarly, the fact there is no apparent injury or on the other party is no excuse for breaking the rules of procedure” ndant has not stated the facts known to him as an alternative to the facts in the claim contrary to the requirements of the rules of procedure. the reasons for delaying to apply for leave to amend the defence are in «lered view an afterthought. The Defendant has failed to amend the ot close to year since his release on bail in September, 2020. The reasons ‘ay cannot be justified and this Court rejects them. ce the subject of this application is indeed bare denials and can only be described as a “holding defence” which is intended to delay the -as./As was observed by the Court in the case of Chikondi Mkwapatira y 7|Page Wexnine diane and Prime Insurance HC/PR Personal Injury Cause 684 of {UIT ported) “The filing of the socalled “holding defences” is more than a ime qwesling practice which has hitherto belaboured the Courts ane seriously hindered the efficient delivery of justice Such a practice can no longer be tolerated under CPR, it has fo eliminated.” There con for having a defence that is bare or general denial eliminated is because if runs unter to the provision of rule 6 which does not allow or permit general or bare dials. The defence as it stands is a bare or general denial which has the cffect ~~ leave the Claimant and the Court in quandary as to what the dispute betwee: the parties is all about. This Court is of the firm view that the defence — could: vost be described as being evasive and should not stand. li shou... be noted as well that the Defendant did not even exhibit to the sworn staleme <a copy of the draft amended defence. Even if it were exhibited, this Courts could not have regard to it as it is clear indication that it was a mere reaction iO the .oplication to strike out the defence. This only shows to confirm that the defence ss filed was aimed at-delaying justice. The failure to exhibit a copy of the rend: . defence is in the view of this Court a serious irregularity. Ube ot! » trregularity that again goes to indicate lack of seriousness on the part of ihe De -adant is the fatlure to file skeleton arguments as required by Order 20 CPR, 20° 7, Rules of procedure are put in place for a purpose and they should be observe... No any reason for failure to file skeleton arguments were advanced during |. me of hearing of the application. 8] Page vor all - hat [have set out above, the application by the Claimant to strike out:the defence vor being general denial is allowed. Consequently, the defence is struck outand adement is entered in favour of the Claimant. It so ordered. Pronounced 10 Chambers this 24" day of February, 2022 at Lilongwe in the ikcpubi ~ of Malawi. (Le Sh W illiam Ya kuwawa Msiska acts 9|Page