Court name
High Court General Division
Case number
Civil Cause 503 of 2004

Northern Region Water Board v Simama (Civil Cause 503 of 2004) [2005] MWHC 47 (31 December 2005);

Law report citations
Media neutral citation
[2005] MWHC 47
Coram
Null

IN
THE HIGH COURT OF MALAWI


LILONGWE
DISTRICT REGISTRY


CIVIL
CASE NO. 503 OF 2004





BETWEEN




NORTHERN
REGION WATER BOARD………………..PLAINTIFF







-AND-





A.J.
SIMAMA…………………………..………………...DEFENDANT








CORAM: MANDA,
SENIOR DEPUTY REGISTRAR





Nyirongo
(Mrs.) for the plaintiff





Gonaulinji
Court Clerk





RULING


This
is a summons for summary judgement taken out under the provisions of
Order 14 of the Rules of the Supreme Court. The application
is
supported by an affidavit sworn by Atuweni Tupochile Nyirongo. In her
application, Mrs. Nyirongo asked this court to enter judgment
for the
refund of the sum of K337 500, being expenses incurred by the
plaintiff in covering a high pressure water pipe. Mrs. Nyirongo
also
asked the court to order that the defendant should pay statutory
fines of K2000 and K500, for exposing the pipe initially
and for each
day that the pipe was exposed, respectively. These fines are
prescribed under S. 15 of the Waterworks Act.





The
simple facts of this case are that the defendant was allocated Plot
Number 544/94 at Katoto in the City of Mzuzu, which plot
is along the
M1 road. In or around the year 2001, the defendant began excavations
on this plot in preparation for the construction
of a filling
station. In the course of these excavations, a high pressure mains
water pipe belonging to the plaintiff was exposed
by the defendant.
According to the plaintiff, the excavations by the defendant were
done without the consent of the Board and that
this was contrary to
the Waterworks Act. At the same time, the plaintiff’s averred that
the exposing of the pressurized pipe
created a hazard, as the
movements within the pipe could not constrained, since the soil cover
had been removed. From the facts
presented by the plaintiff, had the
pipe exploded, it would have caused widespread damage in the Luwinga
and Chibavi areas. In
view of this the plaintiff’s submitted that
letters were written to the defendant asking him so cover up the pipe
and that the
defendant was even given a quotation for the same but
that it was to no avail. In the meantime, the pipe had started
developing
bulges, an apparent indication that they were going to
burst. In view of this, and as a precautionary measure, the
plaintiff’s
submitted to the court that they proceeded to cover up
the pipe at a total cost of K337 750, which is the sum that they are
now
claiming from the defendant.





In
addition to the cost of covering up the pipe, the plaintiff also
submitted that the defendant did the excavations without their

consent and as such was guilty of an offence under S. 15 of the
Waterworks Act, and that that made him liable to pay the Board
a fine
of K2 000 and further fines of K500 for each day that the pipe
remained exposed. I should of course state that it was not
indicated
as to how many days the pipe remained uncovered. Briefly these were
the facts of this case.





Ordinarily,
I would have just granted the plaintiff the summary judgments on all
aspects of the claim, since this matter was unopposed
as the
defendant never filed an affidavit in opposition and never attended
the hearing of the summons despite the fact that they
had been served
with a notice. Nevertheless, the defendant did file a defence and I
did also consider it in the light of this application.
To say the
least, the purported defence just contained general traverses. Indeed
the defendant stated that he was not made aware
of the K337 750 and
that he never agreed to pay the same. The defendant also stated that
the plaintiff was not entitled to all
the claims as particularized in
the statement of claim, he did not elaborate as to why. In looking at
the defence as against the
letters that were attached to the
plaintiff’s application for summary judgement, I was of the view
that it was not true that
the defendant was not aware of the issue of
the exposed pipe and the need to have it covered, as expressed by the
plaintiffs. Indeed
it was my considered opinion that the defendant
knew of the K337 750 quotation that was given to him by the
plaintiffs. As to assertion
that the plaintiffs are not entitled to
these expenses, I would want to believe that S. 15 of the Waterworks
Act clearly allows
the Board to recover any expenses from a person
who contravenes that Section. In this instance, it was from the
defence that the
defendant was not denying that he exposed the high
pressure pipe and that the same had to be covered up by the
plaintiffs at a
cost. Further the plaintiff has shown to the court
that the excavation work that was done by the defendant was outside
his allocated
plot, which means then that he had no consent to do the
same from the City Assembly and the Board. In view of this then I
felt
that the plaintiff be entitled to summary judgment under Order
14 of the Rules of the Supreme Court for the sum of K337 750. In
my
opinion, the plaintiffs had proven their claim clearly and the
defendant was unable to set a bona fide defence or raise an issue

which ought to be tried (see Roberts
v Plant
[1895] 1
QB 597).





Having
found that I now turn to consider the plaintiffs claim for the fines,
indeed it was specifically to consider this aspect
that I had
reserved my ruling in this matter. My first reaction on this claim
was that it was unsustainable and I still maintain
that view. A
reading of S. 15 of the Waterworks Act gave me the impression that
the fines provided can only be imposed after a
person has been “found
guilty of an offence”, essentially meaning that there must be a
criminal trial resulting in the court
finding the offender of the
section guilty. And after such finding of guilt, I would want to
think that the enforcing of the payment
of the fine would have to be
done by the Criminal court and that the same can not be done by way
of a civil claim. In fact S 52
of the Waterworks Act does state that
“all money, other
than penalties or fines …shall be recoverable at the suit of the
Board in a court of competent jurisdiction…….”

It is therefore in view of this that I do find that the plaintiffs
claim for the fines fails. However the plaintiff is awarded
costs of
this action.





Made
in Chambers this…………...day of……………………………………2006

































K.T. MANDA



SENIOR DEPUTY REGISTRAR