Chimwere v Kachere (375 of 2001) [2006] MWHC 113 (11 September 2006);
IN
THE HIGH COURT OF MALAWI
LILONGWE
DISTRICT REGISTRY
CIVIL
CAUSE NO 375 OF 2001
BETWEEN:
Z.K.
CHIMWERE
PLAINTIFF
AND
S.
KACHERE
DEFENDANT
CORAM
: HON. JUSTICE A.K.C. NYIRENDA
Mrs
Nyirongo; Counsel for the Plaintiff
Mr
Malera; Counsel for the Defendant
Mr
Gonaulinji; Court Interpreter
Mrs
Mhone; Court Reporter.
J
U D G M E N T
NYRIRENDA,
J.
The
plaintiffs case against the defendant is for damages resulting
from an accident which the defendant is said to have occasioned
to
the plaintiffs vehicle while driving the vehicle, Audi, BG 4926.
The
story is that the plaintiff and the defendant were friends and come
from the same area. In 1998 they both engaged in political
campaigns and used to lend each other vehicles for that purpose. The
plaintiffs testimony is that at the material time to this
case,
the defendant wanted to use her vehicle. Just as he was about to
drive off the vehicle he hit a pole resulting into broken
right side
head lamps, damage to the bonnet on that same side and some engine
parts which she did not specify.
Because
the plaintiff and the defendant were close friends it was resolved
that there was no need to report the incident to the
police. The
defendant was to repair the vehicle at his expense.
The
defendant took the vehicle to a garage and some repairs were carried
out. When the plaintiff followed up on the repairs,
she found that
the repairs done were not complete. In particular the broken head
lamps had not been replaced.
The
two engaged in further discussions and it was resolved that some
further repairs would be carried out by the defendant. It
took a
while before anything was done. In the testimony of the plaintiff up
until April 2001 the vehicle had not been repaired.
It then occurred
to her that it was necessary to obtain a quotation from the dealers
of the vehicle to establish the extent of
the repairs that were
required.
She
went to Automotive Products Limited, who were then the dealers, and
obtained a quotation on the estimated repairs on the 4th
April, 2001. The total cost was estimated at K279,514.58. This is
the figure appearing in the plaintiffs statement of claim.
The
quotation was brought to the defendants attention but all it
achieved was further disagreement between the two.
In
December 2001 the defendant wrote the plaintiff and offered to do
some work on the vehicle. He offered to spray paint the whole
vehicle and replace the broken head lamps. This letter was followed
by another letter of 18th
January, 2002 where the defendant offered to panel beat and spray
paint the vehicle which job was going to cost him K85,000.00.
It
was stated in that same letter that the plaintiff was to meet the
cost of mechanical and electrical work on the vehicle.
All these
suggestions were not acceptable to the plaintiff whose position was
simply that she wanted her vehicle back in a state
of repair.
In
February 2002 the plaintiff wrote the defendant through her lawyers
suggesting some work which she felt was to be done by the
defendant
leaving herself to do part of the mechanical work. That compromise
was not accepted by the defendant and that marked
the end of all
attempts to friendly resolve the problem leaving the plaintiff with
resorting to this litigation.
The
plaintiffs action is obviously routed in the oral agreement that
was there between her and the defendant where the defendant
undertook
to repair the damage he had caused to the plaintiffs vehicle.
There should be no doubt about that although counsel
for the
defendant suggests in his submission that the legal basis for this
action is not clear. I do not think so. At no point
did the
defendant deny that he agreed to repair the vehicle. The only borne
of contention as I see it is whether the repairs
were done and if not
to what extent is the defendant liable in repairs to the plaintiff.
This is how simple this whole matter
is.
The
solution to this matter is in the plaintiffs statement of claim.
It is here that I must subscribe to the research done
by counsel for
the defendant as he refers to the case of Slade
vs Drake (1617) Hob 285
where it stated:
Cases
arise by chance and are many times intricate, confused and obscure
and are cast into form and made easier by good and fair
pleading, so
that this is the principal part of the law
.
Pleadings
are meant to give the other side the nature of the case and all
attempt must be made to precision and accuracy. It is
for this that
it is now more than settled that pleadings define and limit issues to
be tried, see Milbank
vs Milbank [1900]1 Ch. 376.
Paragraph
3 of the statement of claim which is the only paragraph in the
statement of claim that speaks for the actual claim states:
The
defendant was involved in an accident with the said vehicle resulting
in very extensive damage of the same to the tune of K279,574.58.
Listening
to the totality of the plaintiffs testimony, which to a large
extent is admitted by the defendant, is that the damage
caused by the
accident when it happened was the head lamps on the right side and
the bonnet on that same side. The defendant
as said, accepts this
part of the damage which he agreed to repair. By Exhibit P3 the
defendant accepted to pay K85,000.00 for
panel beating and painting
the vehicle.
The
plaintiff insists on damages according to the quotation Exhibit P1
obtained from Automotive Products Limited. In explaining
the
quotation the plaintiffs testimony is that the other parts and
repairs which are included on the quotation, apart from the
damaged
lamps and damaged bonnet, are as a result of deterioration and
possibly thefts because the vehicle stayed at various garages
for
sometime awaiting repairs.
The
quotation has a long list of items literally from the front bumper to
the rear bumper. It might be of interest to lift the
quotation into
the judgment. This is what it says:
Automotive
Products Ltd
P.O. Box 30068
Blantyre 3
Malawi
4.4.2001
Mrs Z. Chimwere
P.O. Box 31006
Lilongwe 3
Dear Sir,
RE : ESTIMATE
FOR REPAIRS TO AUDI 200SE
CHASSIS NO.
444 EA 2353796
ENGINE NO 44
EO 123 052
REGISTRATION
NO. BG 4926
MILEAGE:
Following your
enquiry for the above we have pleasure to submit out estimate as
follows:
SPARES
NEEDED
K
T
1 Indicator
light front (R) 2,413.90
1 Indicator
light front (L) 7,107.78
1 Rear left
interior door handle 1,194.86
1 Rear left
exterior door handle 7,194.86
1 Rear right
exterior door handle 7,280.00
2 Wiper
blades 2,108.00
1 Left front
door panel 6,210.00
1 Gear lever
knob 1,422.08
1 Right hand
side front door panel 6,210.00
1 Headlamp
left 6,100.00
1 Headlamp
right hand side 6,100.00
1 Front
bumper 14,000.00
1 Front
grille 7,812.00
1 Front bumper
chrome 317.80
1 Fuel
filter 2,910.50
1 Radiator top
hose 860.00
1 Radiator
expansion pipe 346.00
1 Engine oil
filter 597.00
4 Tins brake
fluid 614.00
5 Spark
plugs 990.00
1 Air filter
element 667.95
2 Front shock
absorbers 9,046.96
2 Rear shock
absorbers 16,000.00
1
Battery 6,500.00
1 Flasher
unit 11,000.00
1 Tail light
left 7,500.00
1 Tail light
right hand side 7,500.00
1 front bumper
chrome © 3,100.00
1 Front bumper
chrome (L) 2,006.72
Total spares
147,811.21
LABOUR
Maintenance
Lubrication
with engine oil change
Cooling system
repair
Repair
electrical system
From bumper
renew
Air filter
element renew
Body panels
renew
Interior door
panel renew
All shock
absorbers renew
Wheel
alignment 91,460.68
Surtax 21,950,56
Sundries 18,292.13
Total
K279,514.58
The above
estimate is not and valid only for labour and parts in stock as per
today.
We thank you
and remain.
Yours
faithfully,
For and on
behalf of
AUTOMOTIVE
PRODUCTS LIMITED
Signed
Signed
F.B.
MPWEYA G.M. FORRESTER
WORKSHOP
MANAGER BRANCH
MANAGER
A
couple of observations ought to be made with regard to this
quotation. It becomes obvious that a larger part of the plaintiffs
claim is attributed to parts lost due to deterioration and possible
thefts at garages where the vehicle was lying. But that part
of the
case only comes out in court from the plaintiffs testimony.
There is nothing in the statement of claim to show that
the largest
part of the damages are attributed not to the actual accident but
these other factors. As it were the real picture
is not in the
pleadings.
The
other matter that has also exercised my mind is that the damage
immediately after the accident seems to have been minimal, the
head
lamps
and the bonnet. It does not say the vehicle could not move. When
it became apparent, which it must have, during the entire
1999 and
2000, that the defendant was unlikely or was unwilling to repair the
vehicle, the question really is why the plaintiff
could not collect
her vehicle to safe keeping to mitigate possible further loss and or
damage. The fact therefore is that the
vehicle was left abandoned
by not just the defendant, but by the plaintiff herself for over
three years.
Under
these circumstances and for the reasons regarding the pleadings that
I have stated earlier I am inclined to disregard the
contents of
Exhibit P1 save to picking out those spare parts that had been agreed
between the plaintiff and the defendant. It
was agreed that the
defendant would replace the right side head lamps. The cost of
those items is K6,100.00. The defendant
later committed himself to
panel beating and painting the vehicle to the amount of K85,000.000
according to Exhibit P3. In all
I condemn the defendant to the total
sum of K91,000.00. I award the plaintiff interest at five percent
on this sum.
Costs
are for the plaintiff.
PRONOUNCED
in Open Court at Lilongwe this 12th
day of September, 2006.
A.K.C.
Nyirenda
J U D G E