Court name
High Court General Division
Case number
Civil Cause 118 of 2005

Ziba v Makumba t/a Planet Car Parts & Anor. (Civil Cause 118 of 2005) [2005] MWHC 72 (31 July 2005);

Law report citations
Media neutral citation
[2005] MWHC 72

IN
THE HIGH COURT OF MALAWI


LILONGWE
DISTRICT REGISTRY


CIVIL
CAUSE NO. 118 OF 2005





BETWEEN


MRS
PRICILLA M.C. ZIBA ………………………………………….........
PLAINTIFF





AND





MR
JAFALI SAITI MAKUMBA t/a PLANET CAR PARTS ……..1
ST
DEFENDANT


NICO
GENERAL INSURANCE COMPANY LIMITED …………2
ND
DEFENDANT





Coram:
Ligowe: Assistant Registrar


Chilenga:
Counsel for the defendants





_______________________________________________________________




RULING





This
is the second defendant’s application to be removed as a party
wrongfully joined under Order 15 Rule 6 of the Rules of the
Supreme
Court. There is an affidavit in support sworn by Marshal Chilenga,
counsel for the defendant and an affidavit in opposition
sworn by
Likhwa Robbie Mussa, counsel for the plaintiff.



The
facts of the case are as follows. The plaintiff’s motor vehicle was
involved in an accident with a vehicle driven by the 1
st
defendant, a Toyota Hiace Mini bus Registration Number MZ 4332. The
2
nd
defendant is being sued as an insurer of the said mini bus.





In
the affidavit in support counsel deposes that the motor vehicle
number MZ 4332 was sold by Mr. L.J. Chinula to Mr. Makumba at
the
time of the accident. That the 2
nd
defendant had insured the vehicle on behalf of the said L.J. Chinula,
the previous owner of the vehicle only and no other person
was party
to that contract. That the 1
st
defendant is not covered by the insurance policy between the 2
nd
defendant and Mr. L.J. Chinula in terms of S 148 of the Road Traffic
Act. That under regulation 25 of the Road Traffic (Registration
and
Licensing) Regulations, a purchaser of a motor vehicle must change
ownership within 7 days and have a new certificate of insurance.
That
the insurance policy with the 2
nd
defendant lapsed on the sale of the vehicle and the 1
st
defendant has no rights to it by virtue of the said regulation 25.
That the 2
nd
defendant was wrongly joined as a party to this action as there was
no policy of insurance at the date of the accident.





In
the affidavit in opposition counsel for the plaintiff agrees that the
vehicle was sold by Mr. L.J. Chinula to Mr. Makumba. That
after the
sale Mr. Chinula renewed the policy of insurance on the vehicle in
his own name. That it was the intention of the parties
that property
in the vehicle would transfer to the 1
st
defendant on completion of payment of the purchase price and as such
the property in the vehicle at the time of the accident was
still in
favour of Mr. Chinula who accordingly proceeded to renew the policy
of insurance. Counsel argues in the affidavit that
under the Sale of
Goods Act, property in specific or ascertained goods is transferred
to the buyer at such time as the parties
to the contract intend it to
be transferred. The vehicle still belonged to Mr. Chinula at the time
of the accident.





During
hearing Mr Chilenga cited
Mavuto
Tchongwe v. Mrs. Mulinde and NICO General Insurance Co.

Civil cause No. 3559 of 2002 where His Honour Tembo A.R. held that
where a vehicle has been sold the liability of the insurer lapses
and
he struck out the 2
nd
defendant from the action.





I
had occasion to read regulation 25 of the Road Traffic (Registration
and Licensing) Regulations. It does not however provide as
deposed by
counsel for the 2
nd
defendant in his affidavit that a purchaser of a motor vehicle must
change ownership within 7 days and have a new certificate of

insurance. The regulation provides for the date on which a motor
vehicle is to be licenced. Obviously licencing a motor vehicle
is not
the same as insuring it. There is talk of a seven day period under
regulation 25(3), but that is a period within which a
motor vehicle
may after the date liable for it to be licenced be allowed to be
operated on a public road while the registration
number allocated to
it prior to the date on which the motor vehicle licence became null
and void is displayed. I tried to look
at the Road Traffic
(Insurance) Regulations but found no provision to the effect
submitted by counsel. I am not ready therefore
to accept Regulation
25 of the Road Traffic (Registration and Licensing) Regulations as
authority for the proposition that a purchaser
of a motor vehicle
must change ownership within 7 days and have a new certificate of
insurance.





In
Mavuto Tchongwe v.
Mulinde and NICO General Insurance Co.

(op cit), the 2
nd
defendant’s case was that by the time of the accident the 2
nd
defendant’s insured had sold the motor vehicle to someone else such
that it had no liability under the contract of insurance
as the same
had lapsed upon the sale of the motor vehicle. There were two reasons
for that argument. Firstly the contract of insurance
had a note that
the contract was to lapse upon the sale or change of ownership of the
motor vehicle. Secondly that in terms of
section 148 of the Road
Traffic Act what was insured was the use of the motor vehicle by the
2
nd
defendant’s insured, such that once the vehicle in question was
sold there was no one insured under that contract. That is true
in
the circumstances of that case.





However,
generally the person insured, meant in section 148, may not
necessarily be the owner of the vehicle. Section 143 of the
Road
Traffic Act provides that a policy of insurance that complies with
the requirements of the Act must insure such persons or
class of
persons as may be specified in the policy in respect of any liability
that may be incurred by him or them in respect of
the death of or
bodily injury to any person, or damage to property.





The
plaintiff’s affidavit evidence in this case shows that the 2
nd
defendant had insured the vehicle on behalf of the said L.J. Chinula,
the previous owner of the vehicle only and no other person
was party
to that contract. My understanding of that statement is that it is
talking of the vehicle being insured and not the user.
No evidence
has been given as to the persons or class of persons insured under
the policy of insurance in question. It is that
evidence that would
show whether the 1
st
defendant in this case is excluded. If so, the 2
nd
defendant would then be a wrong party to the present proceedings. In
the absence of that evidence this court has difficulties in
deciding
whether the 2
nd
defendant was wrongly joined as a party.





The
application is dismissed. Costs will be in the cause.





Made
in chambers this ………… day of August 2005.




















T.R.
Ligowe


ASSISTANT
REGISTRAR