Nkhambule t/a Paullendo Transport v Stancom Tobacco Company (No Case No) ([node:field-casenumber]) [2007] MWHC 79 (03 July 2007);

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BETWEEN


A.G. NKHAMBULE t/a PAULLENDO TRANSPORT ………….1ST PLAINTIFF

-AND-

STANCOM TOBACCO COMPANY...……......…………………... DEFENDANT


CORAM : T.R. Ligowe : Assistant Registrar

Chinoko : Counsel for the Plaintiff

Manda : Counsel for the Defendant


RULING

The plaintiff commenced action against the defendant claiming damages for loss of use of its Leyland Daff truck and trailer registration No. MHG 957/BL 429 at the rate of K132 000 per two weeks or such rate as the court may deem fit, from 15th April 2004 to the day it was fully repaired 24 weeks later. The plaintiff claims that on or about 15th April 2004, the defendant’s agent and/or servant Josaya was driving the defendant’s motor vehicle Isuzu KB Registration No. SA 3779 along Chendawaka Road from Kanengo towards Area 25 when he so negligently drove managed and controlled the said vehicle that he caused it to violently collide with the plaintiff’s Leyland Daff thereby causing extensive damage to the truck. He is not claiming cost of repairs for the damage caused as the same were already settled by the defendant’s insurers, but loss of use of the truck and trailer.


The defendant now applies for a disposal of the case on a point of law under Order 14A of the Rules of the Supreme Court. The facts as gathered from the affidavits in support, in opposition and in reply are that the defendant’s insurers, CGU Insurance Ltd., paid K435 715.36 which included the cost of repairs to the truck and K50 000 for loss of use limit according to the defendant’s insurance policy. After that payment the plaintiff executed a release and discharge order to CGU Insurance Ltd. in the following terms:


TO: CGU Insurance Ltd. Claim No. A312040046

P. O. Box 661

Blantyre


RELEASE AND DISCHARGE


IN CONSIDERATION of payment of K435 715.36 in full and final satisfaction or settlement of all claims of whatsoever nature arising out of or from an accident which occurred on the 15th day of April 2004 along Chendawaka Road, Lilongwe.


We for ourselves, our dependants, executors, administrators and assigns, hereby release and discharge you and Standard Commercial Tobacco (hereinafter called “your insured”), and any servant, agent or other person in the employ of your insured from all actions, proceedings, claims, demands, costs and expenses whatsoever which we now have in respect of the said accident or for or in respect of any matter or thing relating therein or resulting therefrom.


And we hereby acknowledge that the said payment has been made and the release and discharge has been accepted by you not only on your own behalf but on behalf of your insured and/or the other persons referred to above.


We agree that we have satisfied ourselves that to the extent if any to which the settlement has been negotiated by any agent on our behalf such negotiations have been entirely in our interest.


And we acknowledge that we have not been induced to sign this release and discharge and we, our dependants, executors, administrators and assigns shall not be entitled to question the validity of this release and discharge on any grounds whatsoever.


Dated at Lilongwe this 12th day of October 2004

Signed

Full name: A.G. Nkhambule

(Interpreted by (if necessary))


OFFICIAL STAMP:…………………………………………(if signing for firm)

WITNESS:

ADDRESS: Kingfisher Associates, P/Bag 143, Lilongwe

OCCUPATION: Senior Manager




The release and discharge is signed by the plaintiff in the presence of Messrs Kingfisher Associates, his insurance brokers as the witness.


The questions under consideration are:

  1. Whether the release and discharge order by the plaintiff to the defendant’s insurers absolves the defendant from any liability whatsoever in respect of the road accident the basis of this claim.

  2. Whether the amount of K435 715.36 paid by the defendant’s insurers constitutes accord and satisfaction.

  3. Whether the plaintiff is bound to the defendant by the release and discharge order.


In its affidavit in support, the defendant repeats the second paragraph of the release and discharge and avers that the release and discharge was in consideration of the payment of K 435 715.36 by the defendant’s insurers to the plaintiff in full and final satisfaction on the defendant’s behalf of the plaintiff’s loss arising from the collision and so the defendant has been wrongfully sued and thus the defendant prays that the action be dismissed with costs.


In his affidavit however, counsel for the plaintiff states that the payment by the insurers did not constitute full and final settlement of the claim as it is very clear that the said payment was made to carter for the repairs of the damaged vehicle. He exhibits a copy of a letter, marked “MC1,” from the defendant’s insurers particularizing the payment on the cost of repairs and states that the payment was for the repairs to the truck plus a further K50 000 for loss of use limit according to the defendant’s insurance policy. That the plaintiff signed the release and discharge on the understanding that it only covered the repairs and not the claim for loss of use and he signed without legal advice.


In reply the defendant states that “MC1” clearly stated that the signing of the release and discharge order would “conclude the claim.” That if the plaintiff needed any advice on the true import and implication of the release and discharge order, he could easily have sought the assistance and expertise of his insurance brokers, Messrs Kingfisher Associates who had all along acted for him and who were in fact at hand to witness his signature.



Under Order 14A of the Rules of the Supreme Court the Court has authority to determine any question of law or construction of any document arising in any cause or matter at any stage of the proceedings where it appears to the Court that - (a) such question is suitable for determination without a full trial of the action, and (b) such determination will finally determine (subject only to any possible appeal) the entire cause or matter or any claim or issue therein. And it is further required that the defendant must have given notice of intention to defend; and the parties must have had an opportunity of being heard on the question of law or have consented to an order or judgment being made on such determination.


In this case the defendant gave the notice of intention to defend and even served their defence and the parties have been heard before this court.


For a question to be suitable for determination without a full trial of the action, it means that all material facts must be available to the court at the time of making the decision. In Korso Finance Establishment Anstalt v. John Wedge (unrep., February 15 1994, CA Transcript No. 94/387) (cited at Para. 14A/2/5 of the Rules of the Supreme Court 1999) where the ambit of Order 14A was considered by the Court of Appeal of England, Sir Thomas Bingham expressed unease at “… deciding questions of legal principle without knowing the full facts.” And these are facts which have been proved or admitted not hypothetical or future facts. (Summer v. William Henderson & Sons[1963] 1 W.L.R. 823.)


The questions in this case essentially require the construction of the release and discharge order in question. Now, is the construction of the release and discharge order suitable without a full trial? In other words, do we have available to this court full facts, proved or admitted on which the construction can be based?


He normal rules relating to the construction of written contracts would also apply to the release and discharge order in this case. So the release in general terms must be construed according to the particular purpose for which it was made in the light of the circumstances existing at the time of its execution, and with reference to its context and recitals in order to give effect to the intention of the party by whom it was executed. (Chitty on Contracts, General Principles: 27th ed. Para.22-004, p 1074)


Unyolo J, as he was then was faced with a similar situation, to construe a release and discharge form in Bagus v. Shire Ltd [1993] 16(1) MLR 21. The following is what he said at page 26.

“As was pointed out in Manda and others v City of Blantyre Civil Cause No. 1131 of 1990 (unreported), courts have shown a measure of reluctance to uphold an alleged release or discharge where the plaintiff had no legal advice in accepting the settlement. However, at the end of the day, it is a question of fact whether the parties to a release or discharge actually agreed to a full and final settlement once and for all. The fact that a plaintiff did not take legal advice is a factor to be taken into account. That said, it does not however mean that the court will find for the plaintiff in every case that such advice was not had. In short, the court must be satisfied, after carefully considering the release or discharge itself and all other relevant facts, that a full and final settlement of all claims and damages was indeed envisaged and agreed to.”


That case was decided upon trial and the Judge was accorded the viva voce evidence of the plaintiff, and his demeanour and he used that plus the ordinary meaning of the words used in the release and discharge form to determine the intention of the parties in executing it. But before me is an application under Order 14A. It was held in Korso Finance Establishment Anstalt v. John Wedge (op cit) that respondents to such an application are not entitled to contend but hunt around for evidence or something that might turn up on discovery which could be relied upon to explain or modify the meaning of the relevant document. And that in the absence of such evidence the court should not refrain from dealing with the application.


Apparently the phrase “the full trial of the action,” in the requirement that the question must be suitable for determination without a full trial of the action for it to be considered under Order 14A, in its widest sense not only includes when the witnesses of the parties are called to give oral evidence under examination and cross examination in an open public trial before the court but also all the relevant pre-trial stages of the action, such as the service of pleadings, the discovery of documents, the exchange of expert witness reports and the witness statements etc. I have not been able to find a full copy of the Judgment in Korso Finance Establishment Anstalt v. John Wedge but obviously the discovery that is meant when it says that the respondents must hunt around for evidence or something that might turn up on discovery which could be relied upon to explain or modify the meaning of the relevant document, is the discovery as in one of the pre-trial stages of an action. Meaning if that evidence or something is there, the matter has to go for full trial.


The plaintiff in this case has exhibited MC1 and avers that the payment in question did not constitute full and final settlement of his claim. It is clear therefore that this matter has to go for full trial. The question is in the circumstances not suitable for determination without a full trial.


The application is dismissed with costs.


Made in chambers this 3rd day of July 2007.





T.R.Ligowe

ASSISTANT REGISTRAR