Juma( On his own behalf as brother to the deceased and on behalf of the other dependents of the deceased Rose Juma) v NICO General Insurance Company Limited and National Bus Company Limited (Personal Injury Case 78 of 2014) [2016] MWHC 737 (29 March 2016)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI ZOMBA DISTRICT REGISTRY PERSONAL INJURIES CASE NUMBER 78 OF 2014 BETWEEN YUSUF JUMA (On his own behalf as brother to the deceased and on behalf of the other dependants of the deceased ROSE JUMA)... ec eececeteceeecesenceeeeeeentenseceeeceesseseaeeeeeseneeneeesseeaeeeeseaeaeeeeeeenseaaeeeeeeeesenanenees PLAINTIFF AND NICO GENERAL INSURANCE COMPANY LIMITED...............cc:cccccsssseeesesseeeeeseeseevens 18T DEFENDANT NATIONAL BUS COMPANY LIMITED..............::ccccssssesseecessteeeeeseetecsseneeeseeesenesaes 2ND DEFENDANT Coram: H/H Jean Rosemary Kayira Assistant Registrar Counsel Wezzie Kamunye of Counsel for the Plaintiff Counsel Bonongwe of Counsel for the 1st Defendant Counsel Shabir Khan of Counsel for the 2"4 Defendant Mr. Tepeka Court Clerk and Official Interpreter RULING _ ________ INTRODUCTION — a The Plaintiff commenced the present proceedings on 17% February 2014 through a specially endorsed writ of summons. In his statement of claim, he claims damages for loss of dependency and expectation of life. He also claims special damages for procurement of Police and Death Reports. The deceased Rose Juma was a pedestrian who died when a motor vehicle Registration Number BR 5986 Scania Bus which was insured by the 1s Defendant hit her while she was walking on the dirty verge off the roadway at or near the Chingale Turn Off along the Machinga-Zomba Road on 24t October 2013. This is believed to have been a result of negligence by the driver of the material motor vehicle. On 17 February 2014, the 1s Defendant was served with the specially endorsed writ of summons. Due to their failure to file or serve a defence within the prescribed time of 14 days after service, on 3% April 2014, the Plaintiff obtained a judgment against NICO General Insurance Company Limited. The 1st Defendant then obtained a stay of execution of the default judgment on 11 April 2014 pending determination of summons to set aside the default judgment. On 17% April 2014, the parties by consent order set aside the default judgment of 3" April 2014. Subsequently the Defendant filed a defence in which they denied being insurers of the said bus. They submitted that the quoted insurance certificate number was issued in relation to a different motor vehicle and not the one in this proceeding. Thereafter the parties obtained directions as to how the matter will proceed on 16th June 2014. On 19 May 2015, the Court heard one witness. The matter resumed on 2"4 June 2015 for further hearing. On this day, Counsel Kamunga submitted that once National Bus Company Limited has been incorporated as a party to the proceedings, NICO General Insurance Company may be saved because they can be taken out as a party since it is on the record that. they seem not to have insured the material motor vehicle. The discussions he had with his witness Sub-Inspector Njirayafa this appears to be true. The matter was then adjourned for the Plaintiff to make necessary applications to have National Bus Company Limited added to the proceedings as a party. On 23 June 2015 the Plaintiff made an exparte application for leave to add National Bus Company Limited and to amend the writ of summons. This Court duly granted the leave to add a party and to amend the writ of summons. Then said National Bus Company Limited was added as party to the proceedings. On the same day a writ was issued and it was served on them on 24" June 2015. On 15t July 2015, the Plaintiff obtained a default judgment against the 2"4 Defendant who failed to acknowledge service and file their defence after service of a writ. On 27% July 2015 the 1st Defendant filed a summons to be stricken out as a party to the proceedings. The said application was set on 17 August 2015. On 7! August 2015, the 2" Defendant obtained a stay of the default judgment pending determination of an application to set aside the default judgment. On 9h September 2015, this Court heard submissions from both parties regarding the summons to set aside the default judgment. Additionally, the Plaintiff prayed that the 24 Defendant should be condemned to costs before their application to set aside the default judgment is considered by the Court. This Court on 11? September 2015 granted this prayer by the Plaintiff. | will now reproduce the submissions made by both Counsel Kamunga and Khan on the summons for setting aside the default judgment. Counsel Khan submitted that his application is supported by his Affidavit which he adopted it in its entirety. Counsel acknowledged that there is a regular default judgment against the 274 Defendants for failure to show intention to defend the matter and indeed filing a defence within a prescribed period of time. However, the 24 Defendant is still desirous of contesting these proceedings on the basis that he has a defence on merit. Counsel submitted that the defence raised in paragraphs 6.10 to 6.18 are triable. These issues relate to whether or not the 24 Defendant owns the material motor vehicle, whether the same was involved in an accident on the date and place mentioned in the Plaintiff's claim, any form of negligence and whether the Plaintiff is entitled to be compensated by the 2"4 Defendant. . According to Counsel the rules to be followed in an application to set aside a regular default judgment were set by the Malawi Supreme Court of Appeal in Chilenje vs Attorney General’. The Court stated that the applicant must make an application through an Affidavit and show that he or she has a defence on merit. The facts deponed must show what it is meant by having a defence on merit. The Court stated that a defence on merit comprises arguable and triable issues for trial and that its strength or weakness is not a matter of consideration at this stage of the trial. On this basis, they believed that they have raised a defence on merit and adequately raises issues to be dealt with at trial. As such the interest of justice would be to set aside the regular default judgment. He therefore finally prayed that the default judgment entered in favour of the Plaintiff be set aside. In response Counsel Wezzie Kamunga who represents the Plaintiff be condemned to pay costs which the Plaintiff has incurred at to this stage of the trial before the prayer to set aside the default judgment is finally set aside. Counsel Kamunga prayed that the setting aside of the default judgment should be with a preceding condition for payment of costs by the 2"4 Defendant since the said judgment was regularly obtained and the defendant has not told the Court why they failed to attend to the writ of summons once they were served with the same. He referred this Court to paragraph 10 of Counsel Khan’s Affidavit in support of the present application. According to Counsel, the actions of the 24 Defendant were deliberate and this Court should not condone such practice. As for the Plaintiff he has no intention to block the 24 Defendant from defending the matter. Counsel further submitted that the matter was initially commenced against NICO General Insurance Company in 2014. It went for trial where NICO denied liability since they did not insure the material motor vehicle. Resultantly trial did not take place and the Plaintiff applied to have National Bus Company added as a Defendant to this matter. The failure to acknowledge receipt of the writ of summons and filing of defence has delayed the Plaintiff. As such any further delays may frustrate the Plaintiff. It will therefore be unfair to set aside the default judgment unconditionally. There is a pending application by NICO that they are not insurers of the material motor vehicle and if the 274 Defendant is denying ownership of the bus, then their seriousness on defending the matter is doubtful yet there is a statement made by a Police Officer Njirayafa who impounded the said bus. Finally Counsel Shabir Khan submitted that he leaves the issue on payment of costs of the case to the Court’s discretion since Counsel did not make reference to any authority for such an application. According to Counsel Khan, attaching a condition to setting aside the default judgment will be tantamount to shielding the 24 Defendant from defending its case. The case of Chilenje has not put any conditions prior to setting aside a default judgment. As to the submission that the Defendant has not stated reasons for its failure to attend fo this matter, Counsel Khan submitted that the reasons are well articulated in paragraph 10 of his Affidavit. As Counsel for the Plaintiff rightly submitted the matter was first against NICO and the 2™ Defendant only came in in July 2015. The default judgment was entered on 7th July 2015 and it did not take long for the 2nd Defendant to apply for setting aside the default judgment. As such there is no prejudice suffered by the Plaintiff by virtue of the present application. [2004] MLR 34 ~ The second application is on the summons to struck out the 1st Defendant NICO General Insurance Company Limited from the present proceedings. On 16" December 2015, Counsel Bonongwe for the 1st Defendant applied that the 1st Defendant be struck out as party to the proceedings because they were not insurers of the material motor vehicle Registration Number BR5986, The summons was pursuant to Order 15 rule 6 (2) (a) of the Rules of the Supreme Court. On this day, this Court adjourned the matter for Counsel Bonongwe to serve Counsel Khan of Counsel for the 2"4 Defendant with notice for the summons. The matter then resumed on 21st December 2015 on the same application. On this day, Counsel for all parties were present. Counsel Bonongwe submitted that under Order 6 rule 3 of the Rules of the Supreme Court, the Court is empowered to remove any Defendant or indeed any party to an action if it transpires that the said party was wrongly added. He submitted that he had filed an Affidavit and skeleton arguments in support of his application. He adopted these documents in their entirety. It is Counsel Bonongwe's submission that the 2"4 Defendant's alleged Motor Vehicle BR 5986 which is alleged to have been involved in a road traffic accident and which the Plaintiff claims was insured by the 1st Defendant in terms of Section 148 of the Road Traffic Act an insurer is only to be made a party to the proceedings if it is shown that they are insurers of the motor vehicle in question. It is Counsel Bonongwe’s argument that his client was made party to the present proceedings based on an abstract from a Police Report which alleged that the said bus which is owned by the 2"¢ Defendant was insured by the 1st Defendant under Certificate of Insurance Number 10575272. However, he mentioned that the 1st Defendant was the insurer of some of the 2" Defendant's bus but BR 5986 was not part of the motor vehicles that were insured by them. He directed this Court to paragraph 6 of his Affidavit which exhibits the insurance policy between the 1st and 2°¢ Defendants with a schedule of motor vehicles that were insured by the 1st Defendant at the material date of the accident. Counsel Bonongwe further submitted that AB2b shows that there are forty six motor vehicles with their respective registration numbers and the said BR 5986 is not appearing on that list. Secondly, the Certificate of insurance which has been quoted above which is being referred to as being on BR 5986 actually belongs to the 2"4 Defendant's bus whose Registration Number is BQ 4502. The disk belongs to a motor vehicle on the list but it is for BQ4502. According to Counsel Bonongwe, paragraph 7 of his Affidavit proves that the Certificate of insurance belongs to BQ4502 which was not involved in any accident. Counsel then stated that there is a judgment of Prince Enoch vs. Prime Insurance Company Limited? which holds that details of a motor vehicle as recorded by a Traffic Officer are only prima facie evidence that the same are true unless the Plaintiff proves otherwise that the details are genuine. Counsel submitted that he had just been served with an Affidavit in opposition of the application that morning. In the said Affidavit especially paragraph 4 States that the 1st defendant is only denying the material bus. *Personal Injury Cause Number 583 of 2012 Counsel Bonongwe further submitted that on the last hearing the Plaintiff himself referred to the 2nd Defendant's application to set aside the judgment and it was indicated that the 24 Defendant are not the owners of the motor vehicle in question. However, he is the one who made an application to amend the writ to add the 2"4 Defendant as a party and this was granted and the Plaintiff has exhibited it in support. In essence they argued that the 1st Defendant cannot be a party to this action unless and until the Plaintiff proves that the motor vehicle belongs to the 2"4 Defendant and that the 1st Defendant is the insurer. However, this was not shown in the Affidavit in opposition to the present application. Counsel Bonongwe lastly submitted that the Court should note that they served the hearing summons on the Plaintiff in August 2015. The Plaintiff is actually in doubt and does not know what happened for the 1st Defendant to be insurers of the motor vehicle. He has not taken steps to be sure as to who owns the motor vehicle and who insured it. In the circumstances, he prayed that the 1st Defendant should be struck out as a party to the action. Should the Plaintiff find any evidence that the 1st Defendant were insurers of the material motor vehicle he can apply to have the 1st Defendant added as a party. He then prayed for costs of the present application. In response Counsel Shabir Khan submitted that he was served with the notice and actual application but had not done any Affidavit in opposition on the premise that they do not have any objection to the application since both Defendants have been sued severally and jointly as the alleged owner and insurer for the alleged motor vehicle in question. According to Counsel Khan, the 1st Defendant is entitled to make the present application in his own right which the Court must consider on the merit. Based on the evidence adduced Counsel was not sure if this is at trial stage and that the 2-4 Defendant only came in the action in June 2015. They made an application to set aside the default judgment and the ruling was still pending before this Honorable Court. This renders them to have difficulties to comment on these issues because they have not yet filed their defence in this matter. Ofcourse their application demonstrates that their proposed defence will be to deny that the car was involved in an accident. Therefore they left it to the Court's discretion to consider the application of the 1st Defendant based on the presented arguments. Counsel Kamunga then responded that in their Affidavit they are not trying to drag NICO the 1st Defendant into this matter for the sake of it. If a party did not insure a motor vehicle indeed there is no need for that person to be made a party because it will be unjust. However, in the present matter it will be unfair and unjust if NICO were removed as a party at this stage. Counsel Kamunga further submitted that their Affidavit in Opposition opposes the application because this means that NICO is linked to this accident Otherwise how can an insurance certificate number be found on the Police Report? Secondly, it is noted that there is a witness statement by a Police officer stating that NICO were insurers of the said bus. The Police officer who wrote the witness statement is about to testify during full trial. As such this application is premature to some extent because these issues can be sorted out during trial where there is cross examination of issues. Further Counsel Kamunga argued that the evidence presented by the 1st Defendant considering the schedule of the motor vehicles insured by the 1st Defendant can only be clarified to them if an official from the insurance . company comes to Court to testify on that document. Counsel was of the view that the insurance data personnel may have made a mistake in punching the data and they may run the risk of lifting NICO off the hook when the evidence connects NICO to the matter. This can only be known during trial. On the case cited by Counsel Bonongwe, Counsel Kamunga argued that it says that it is a judgment after full trial meaning that it may not just apply to a chamber hearing of the Registrar and even if Counsel may still want to rely on the extract which he read to the Court, there is a case of Olive Muntaliya vs. National Bus Company and NICO where Mwaungulu J as he then was attached weight to a Police Report's contents. Subject to proper disapproval from the other side, Counsel mentioned that the Plaintiff has not been serious since August when the notice was served. According to Counsel Kamunga that is not true. On the Court file there is a witness statement from the Police Officer in Machinga where Counsel personally recorded him. The insurance disk indicates NICO as the insurer of the bus. In light of what he had stated Counsel Kamunga finally submitted that it is not proper for the 1st Defendant to be removed as a party from the present matter. Counsel Bonongwe adopted his earlier arguments and added that they have exhibited insurance policy with a fleet of 46 cars but the alleged bus BR 5986 is not there. He then submitted that this Court has the powers to hear any application based on an Affidavit. On that list of buses there is a bus under serial 33 which is BQ4602 whose Certificate of insurance is the one indicated on the Police Report. They have gone further to exhibit the disk of BQ4602 indicating the same certificate of insurance which was on another motor vehicle. He believes that these are enough to enable the Court a competent decision. He then submitted the Enoch case which was made by Potani J on 2 July 2014. In his view the said judgment suggests the most contemporary jurisprudence in as far as reliance of the contents of a Police Report is concerned. He does not know any law which precludes the Court to rely on a finding of a final judgment on an interlocutory application. Therefore this Court should consider that judgment. In any case Counsel Kamunga had cited the case of Mwaungulu as he then was. According to Counsel Kamunga, Mwaungulu J puts weight to the contents of a Police Report subject to the rebuttal by the other party which in Counsel Bonongwe’s view is similar to the judgment of Potani J. Counsel Bonongwe submitted that the Certificate of Insurance being relied on by the Plaintiff whose details were contained in a Police Report did not belong to BR5986 but rather to BQ4602 and they are not denying insuring BQ4602. Lastly he submitted that the Court should take note that the 2.4 Defendant herein although ~ he did not file an Affidavit in opposition has hinted that National Bus Company Limited has never owned a bus with Registration Number BR5986. He then said that they are fortified that there is no way the 1s Defendant can be a party to the case if in the first place the insured denies owning the material bus and the insurer brought evidence that the certificate of insurance being relied on by the Plaintiff belongs to another bus. The Plaintiff therefore bears the burden to identify the Defendants or owners of the material bus. He SPR PI No. 20 of 2011 El , cannot just come to Court bringing speculations. In the circumstances he prayed that he be struck out as a party to the present proceedings. REASONED ANALYSIS OF THE COURT The first application before me is for summons to set aside the default judgment against the 2"4 Defendant namely National Bus Company Limited. The main question at this point is to determine whether or not the issues raised by the 2"4 Defendant are arguable and triable. | have gone through the entire Affidavit of Counsel Khan in relation to the present matter. The Affidavit pursues the argument that the 2" Defendant in this matter does not own the material bus. In paragraph 6.13 the 2"4 Defendant pleads that nit does not own and or operate motor vehicle registration number BR 5986 Scania Bus and has never at any material time owned and or operated the said motor vehicle since its inception. To begin with the issue of ownership of the motor vehicle is cardinal to the proceedings because it determines as to who is the right party to be sued. Secondly, by its nature it cannot be proven summarily. It has to be dealt with at full trial. Therefore it is a triable issue worth taking for trial. Similarly the 24 Defendant denies any negligence on its part. This too has elements which have to be proven through a proper procedure at trial. To therefore uphold the default judgment would be depriving the 2nd Defendant a fair trial. The other issue being stated in the Affidavit relates to whether an accident happened at the date and place as claimed by the Plaintiff. Paragraph 6.14 the 2™4 Defendant pleads that none of its motor vehicles was ever involved in any road accident on the date and place mentioned in paragraph 5 of the statement of claim. The law allows for general denials during pleadings. Much as this particular denial is general it just also demonstrates the level of contestation that the 2" Defendant intends to pursue. Considering all the issue raised by the 2"¢ Defendant, in my view all these issues need to undergo a litmus test at trial. In my considered view, | would allow the Defendant to test the credibility of the claim through cross examination. It is to that extent that this Court allows the prayer to set aside the regularly issued default judgment. On the second application relating to striking out the 1st Defendant from the present proceedings, | have considered the reasons advanced by. Counsel Kamunga-at trial before Justice Ntabattis vividly-clear that ——— he was contemplating of removing the 1st Defendant from the present matter following a discussion with Sub- Inspector Njirayafa. This is why he sought an adjournment in order to obtain leave to add National Bus Company Limited. It therefore becomes difficult to ascertain as to what Counsel wants to pursue. This complements the argument by the 1st Defendant that Counsel for the Plaintiff is using speculations in order to pursue his interest. This Court cannot entertain that uncertainty to proceed in the face of evidence which contradicts the very point that the Plaintiff is pushing. ‘It is on record that the Plaintiff sued the 1st Defendant because of the information obtained under the Police Report in relation to this accident. Ordinarily Police Officers do not make investigations after an accident as to whether the Certificate of Insurance number is correct or not. This is why the Court in cognizance of this fact accepted that the contents in a Police Report must be treated as prima facie conclusive evidence until contrary evidence is furnished. In the present matter the 1st Defendant argues that it never insured the said bus. It concedes that the Certificate of Insurance referred to in the Police Report is from them. However it was issued in relation to a completely different motor vehicle which is owned by the 2"¢ Defendant. The 1st Defendant has endevoured to produce documentary evidence which supports this point. On the other hand, the Plaintiff has not adduced any document which rebuts the argument of the 1st Defendant. The arguments by the Plaintiff give an impression that one Certificate of Insurance can be issued for more than one car. However, in practice this is not what the 1st Defendant does. It is clear that each car has its own insurance certificate number. Premised on the foregoing, one would therefore logically conclude that this failure to clearly explain as to who is the insurer of the material bus by the Plaintiff only leads to one conclusion which is that the 1st Defendant is not the insurer of the bus in question. | therefore allow the 1st Defendant's prayer to be stricken out of the proceedings. Costs for this application are also awarded to the 1st Defendant. As for the 1s application costs for setting aside the default judgment were already awarded to the Plaintiff. PRONOUNCED IN CHA Sy T REGISTRAR