Samuel v Prime Insurance Company (Personal Injury 955 of 2016) [2017] MWHC 101 (30 May 2017)

REPUBLIC OF MALA WI MALA WI JUDICIARY IN THE HIGH COURT OF MALA WI PRINCIPAL REGISTRY PERSONAL INJURY CAUSE NO. 955 OF 2016 BETWEEN YO HANE SAMUEL .............................. ................. PLAINTIFF ........ AND PRIME INSURANCE COMPANY LIMITED ...................... DEFENDANT CORAM: His Honour Jack Nriva Registr Mr. Ng'omba of counsel for the plaintiff Mr. Kamangira Mrs. Phombeya of counsel for the second defendant Court Clerk ar RULING This is an application the grounds defendant). counsel by the plaintiff that the defence is a general The motion is supported for the plaintiff. to have the defence by the defendant struck out on them (the of the claim made against denial by an affidavit sworn by Mr. Mauya Msuku, of this action The plaintiff commenced the ground that the defendant said negligence. motor vehicle was the produced The plaintiff in question. The defendant for damages insurer for negligence motor vehicle of the documents to show that the defendant that there was an accident denies the defendant on against that was involved in the the the insured against . L.!BRARV l .......... ..,.., .... � ............ ..... �--!l';,,,V-,�•� # in addition plaintiff that in any event if they are liable, their liability insurance defendant insured the motor vehicle. to denying being the insurer of the motor vehicle. The defendant says of the to the extent argues that the documents in the matter show that the cover. The plaintiff would be limited is a general argues against the motion by the plaintiff. is of the view that the defence of the defendant The plaintiff one and that it is me'rely aimed at delaying the course of justice. The plaintiff therefore asks the court to strike out the defence arguing that there is no dispute defendant be slow to enter a judgement for further investigation. Counsel argued that the prayer a summary judgement. Counsel entering summary judgement that this is not an application in this matter them. anything to dispute the assertions made against by the plaintiff argued that there is a Supreme Court judgment against counsel for summary judgement. Counsel maintained that the defendants Counsel of the in this matter. Counsel argues that the court should before hearing a party. Counsel argued that there is an issue is a general denial. He further stated in such a manner. However, for the plaintiff that the defence have not brought is akin to entering argues to strike is whether is a defence or not. The plaintiff argues The question reasonable defenc the court should triable issues the matter should proceed to full trial. The defendant decision e offered by the defendant. be slow to strike The defendant, on the other hand, argued that out a defence. The defence argues that where there are of the Supreme that there is no made reference Court. a Of course argues the motion in this m�tter is not for summary judgement. is about entry of summary judgement and, as counsel the decision for the plaintiff a trial where there is no need for a From the pleadings, The procedure of trial in the High Court requires One can argue that the effect is the same of either procedure in that summary and striking out a defence are both aimed at avoiding trial. their pleadings. to a tdal or be dealt with summarily. to proceed to trial. issues. The decision is also on the some point. Whichever whether the defence is raising a reasonable triable issue. the court can decide whether Therefore, not every defence would entitle to trial, by the defendant that the parties the matter To proceed brought to be a reasonable there ought in this matter, way, the court has to analyse the defence to determine defence raising about summary judgements, should put across should proceed the matter judgement triable that was before the Supreme Court, the issue was whether there was a triable In the matter issue and whether whether is, to say the least, a general including plaintiff, summary judgement there was a credible and bona fide defence or not. The question was was properly entered. In this matter, however, defence. The defendant is generally denying what we have the claims by the However, the pleadings that they are the insurers of the motor vehicle. by the plaintiff msurer. contains a certificate of insurance indicating that the defendant was the The defendant further said that if they are the insurance of the motor vehicle their liability is limited to the limit under the policy. Looki ng at the eneral denial. Indeed, plaintiff is saying is true that the defenda elieve that what the nt's defence is a g se statements, I b one can ask is whether issue. question defence is raising a triable dispute in this matter. show that the defendant for the plaintiff argument. the defendants In other words, the counsel question the the have a bona fide defence or whether a legal for the defendant intended to as counsel of that is whether there is in this matter. in support However, did not file an affidavit During the oral arguments, the motor vehicle did not insure observed, the defendants denial. it is indeed the case that the defence The defendant To that extent, a defence of general can see a triable the defendant, power to strike procedure. that should if allowed out a defence which, (1897) issue in this matter. See Remmington be a question v Scoles denies of the defendant is a general everything in this matter. If there is an issue about the extent of assessment and not a full trial. one. It is I doubt if one of of the liability The court has be an abuse of to remain on the file, would 2 Ch. 1 where the court said at ... the court has power to strike court is not confined frivolous and vexatious that. It applies also to the statement and an abuse of procedure. out a statement of claim; but the power of the which is of defence, In this matter, by the plaintiff again.st I had to find the defence to be worth it. In summary, to strikeiout the defendant's I allow the summons has a right to appeal The defendant defence. the decision. J 'OJ\ Delivered at Blantyre this 30 th day of May 2017 REGISTRAR 3