Northern Region Water Board v Simama (Civil Case Number 503 of 2004) ((Civil Case Number 503 of 2004)) [2006] MWHC 47 (01 January 2006);

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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