THE HIGH COURT OF MALAWI
NO. 313 OF 2003
A.L. NTONYA t/a MUMS BAKERY
Honour T.R. Ligowe, Assistant Registrar
Liwimbi : Counsel
for the Plaintiff
This is a summons to strike
out defence under O18 r 19 of the Rules of the Supreme Court.
The first and second
plaintiffs commenced action against the defendants by writ of
summons, the first plaintiff claiming damages
for loss of profit of
the use of her motor vehicle and the 2nd
plaintiff claiming damages for personal injuries, pain and suffering
and loss of amenities of life. Paragraph 5 of the statement
states that on or about 13th
November 2002, at or about Wadyakale Village along the Salima /
Nkhotakota road, the 1st
defendants servant or agent negligently drove motor vehicle
registration no. 047 MG 041, assigned to the Forestry Department,
hit the 1st
plaintiffs motor vehicle which was then stationery on the offside
of the road.
Paragraph 6 states that the
plaintiffs motor vehicle was damaged to the extent that it was
written off in value. That the plaintiff lost profits as the
was used to ferry baked products of the 1st
plaintiff to various destinations at a profit. It further states
that the 2nd
plaintiff sustained personal injuries.
Paragraph 7 states that the
defendant has since compensated the 1st
plaintiff for loss and damages to the vehicle in the sum of K503 300
which the plaintiff treats as an admission of liability on
defendant filed a defence to the statement of claim. Paragraph 3 of
the defence states that the defendant contends that the plaintiff
before leaving for his studies was informed by the Malawi Army like
his counterparts that he was to get only a third of his allowance.
find that this statement does not relate in any way to the matter in
question and therefore I will disregard it. It must have
misplaced. Paragraph 4 states that the defendant denies negligence as
claimed in the statement of claim. Paragraph 5 denies
of paragraph 5 of the statement of claim and puts the plaintiff to
strict proof thereof.
Counsel for the plaintiff
submitted that the defence can not succeed taking into account that
liability was admitted by the insurers
who should have been advised
by the defendants to settle the claim. Counsel cited M.Y.
Chande vs Anwar A. Gani Civil Cause No. 22 of 2000
(Lilongwe District Registry) (Unreported) where the defendants
insurers had fully compensated the plaintiff for loss of value
salvage. In that case the plaintiff had also sued for loss of
profits. The defendants put a defence averting that the
was not entitled to the anticipated losses in profits. The court in
that case found that the defence had no merit and
could not be
In this case the 2nd
defendant has already paid compensation for loss and damages to the
vehicle, which is a clear admission of negligence on the part
defendants. The 1st
defendant however puts a defence denying negligence and the
occurrence of the accident. I find this defence unreasonable,
and therefore should be struck out.
The plaintiffs application
therefore succeeds with costs.
Made in Chambers this 13th
day of January 2004.