Golasi v G4s (Malawi) Limited (None) [2016] MWHC 601 (7 October 2016)

September 2014, the Appellant responded by stating that the proposed quantum was on the higher side and then proceeded to put forward figures that were acceptable to it. A copy of the letter is exhibited to the Respondent's affidavit and is marked BYM2. BYM2, in so far as is relevant to this matter, reads:

"...All in all we are of the view that an award of Kl ,500,000.00 will be sufficient for the settlement of the injuries suffered herein.

Asfar as costs are concerned, we are of the view that K400,000 is too high/or a case ... Nonetheless, we are of the view that costs of Kl 50,000.00 would be adequate and reasonable .

Looking forward to your f avourable response" - Emphasis by underlining supplied

By his letter dated 8th December 2014 and marked BYM3, the Respondent accepted the quantum suggested by the Appellant in BYM2. The substantive part of BYM3 is as follows:

"Your letter dated 22nd September 2014 in connection with the above matter refers.

Our client accepts to have the matter herein settled at Kl ,500, 000 damages and Kl 50,000.00 party and party costs

Kindly let us have your client's cheque in the sum of Kl ,650,000.00 in full and final settlement of the claim herein. "

Despite the Respondent writing a reminder letter dated 19th January 2015, the Appellant did not respond to BYM 3 until 27th January 2015 when it wrote the following letter (Marked BYM4):

"Your letter dated I 9¹h January, 2015 refers.

Be advised that our client 's express instructions are toproceed and defend the matter. You may proceed to set down the matter for trial.

We trust theforegoing is in order. "

Based on above-mentioned correspondence, the Respondent filed an application for judgment on admissions and the learned Assistant Registrar, having made a finding that the claim was made out, entered judgment on admission in the sum of K l , 650,000.

The Appellant is dissatisfied with the order of the learned Assistant Registrar and he filed the following five grounds of appeal:

"I . The learned Assistant Registrar erred in law in holding that the matter wasproperly brought before him when mediation had not been terminated [Hereinafter referred to as Ground of Appeal No. I}

2. The Learned Assistant Registrar erred in law and fact in holding that the correspondences on which the application was based were admissible as evidence. [Hereinafter referred to as Ground of Appeal No. 2}

2. The Learned Assistant Registrar erred in law and fact in holding that there was unequivocal admission despite of evidence to the contrary. [Hereinafter referred to as Ground of Appeal No. 3}

2. The Learned Assistant Registrar erred in law andfact in holding that there was an admission of liability which led to the correspondences in question. [Hereinafter referred to as Ground of Appeal No. 4}

2. The Learned Assistant Registrar erred in law andfact in awarding the Plaintiff the sum of MKI , 500. 000.00 as damages and MKI 50, 000.00 as costs." [Hereinafter referred to as Ground of Appeal No. 5}

Ground of Appeal No. 1 was not pursued by the Appellant. Neither the Appellant's Skeleton Arguments nor the oral submissions by Counsel Sauti covered this ground. This does not come as a surprise in view of BYM4. The statement therein that "You may proceed to set down the matter for trial" is not consistent with the contention by the Appellant that mediation had not been terminated. In the premises, this ground of appeal is dismissed.

With respect to Ground of Appeal No. 2, Counsel Sauti submitted that mediation discussion is not admissible evidence. He placed reliance on rule 15(2) (c) (iii) of the Court (Mandatory Mediation) Rules which prohibits a party to a mediation from relying on any information obtained during the mediation, as evidence in court proceedings or any other subsequent settlement initiative, except in relation to proceedings brought (a) by either party to vitiate the settlement agreement on the grounds of fraud or (b) against a mediator relating to his or her conduct of the mediation in terms of rule 9 (5).

He further argued that even if the correspondence between the parties was held to be outside the mediation, the Appellant would contend that the correspondence was part of settlement negotiations. He thus argued that the Respondent was precluded from relying on any of the correspondence relating to mediation and settlement negotiations.

Counsel Makwinja response was brief and concise. He submitted that mediation is not a life-time activity. He referred the Court to rule 7(5) of the Court (Mandatory) Rules which requires mediation to be done within 90 days. On the authority of this rule, Counsel Makwinja submitted that the settlement negotiations did not take place within the realm of mediation.

I have considered the submissions by both counsel and in my view the determination of this ground rests upon rule 15(c) (iii) of the Court (Mandatory) Rules. This provision was the subject of consideration in the case of Flora Chagoma v. Charter Insurance, HC/PR Civil Cause No. 831 of 2007 (unreported) wherein Mbvundula, J made the following observations thereon, at page 3:

"Jn terms of sub-rule (1) it is only those communications made at the mediation session plus the notes and records of the mediator, and under paragraph iii of sub-rule 2(c), it is any information obtained during the mediation which are confidential. In my understanding of that provision, itfollows that communications not made at the mediation, and information not obtained during the mediation, are not privileged, even though they may relate to the case. It is also my understanding that by 'mediation' is meant 'mediation session' . The communications in question here were neither made at a mediation nor can be described as information obtained during the mediation. They are communications made other than at the mediation, or outside the mediation, because they were made when the mediation session had been adjourned. It has not also been shown that they were made with the knowledge or sanction of the mediator, or that the mediator was involved in any manner when the parties made the exchanges which culminated in the agreement, such that they may rightly be said to have been part of the mediation. They are therefore not privileged from disclosure during court proceedings relating to the dispute in issue. "

I cannot agree more with the apt observations by Mbvundula, J. It is only communication that is made with a view to reaching a settlement in the context of mediation proceedings that should be treated as privileged. None of the letters that were exchanged between the parties suggest being made in the context of mediation. To my mind, the letters were actually made independent of the mediation. Such communication is not excluded from disclosure at the trial. By reason of the foregoing, Ground of Appeal No.2 has to fall by the wayside.

Coming to Ground of Appeal No.3, it is the case of the Appellant under this ground of appeal that the correspondence exchanged between the parties does not reveal clear and unequivocal admission as required by Order 27, rule 3 of RSC. Order 27, r.ule 3 of RSC reads:

"Where admissions of fact or part of a case are, made by a party to a cause or matter either by his pleadings or otherwise, any other party to the cause or matter may apply to

the Court for such judgment or order as upon those admissions he may be entitled to, without waiting for the determination of any other question between the parties and the Court may give suchjudgment or make such order; on the application as it thinksjust ".

Counsel Sauti also cited the cases of Ellis v. Allen [1914] CL 904, Produce MKTC Suppliers Ltd v. Packing Industries Mw Ltd (1984-86) II MLR 104) and NBS

v. Malawi Housing Corporation, HC/PR Civil Cause No. 1132 of 2002 (unreported) in support of his proposition that judgment on admission will only be granted in those cases where the admission was clear and unequivocal.

Counsel Sauti submitted that BYM2 does not contain a specific offer but only suggests the quantum and level of costs that would be acceptable to the Appellant. He also contended that BYM3 constituted a second offer by the Respondent but the said offer was never accepted by the Appellant. It was further submitted that, in so far as the settlement or agreement on quantum did not stipulate the mode of payment and the dates of payment, there was no clear and unequivocal admission by the Appellant. In the premises, it was argued that the learned Assistant Registrar erred in holding that he was entitled to assume that there was such an agreement.