IN
THE HIGH COURT OF MALAWI

LILONGWE
DISTRICT REGISTRY

CIVIL
CASE NO. 222 OF 2004

BETWEEN

L.B.
LOKOSANG…….………..……………………………PLAINTIFF

-AND-

NATIONAL
INSURANCE COMPANY LTD…………..DEFENDANT

CORAM: MANDA,
SENIOR DEPUTY REGISTRAR

Kalasa
for
the plaintiff

Chilenga
for the defendant

RULING

This
is the defendant’s summons to have this action dismissed on grounds
that it is frivolous, vexatious and that it is an abuse
of court
process. The summons were taken out under O. 18 r. 19 of the Rules of
the Supreme Court and was supported by an affidavit
sworn by Mr.
Chilenga, the legal practitioner for the defendant, who also did file
skeleton arguments. The application is opposed
and counsel for the
plaintiff did also swear an affidavit and also filed skeleton
arguments.

The
background to this case is that it arose from an accident, which
according to the plaintiff’s affidavit took place sometime
around
the 6^th
of March 1997. Following the accident, the plaintiff filed a claim on
the 18^th
of February 2001, which claim was dismissed for want of prosecution
on 3^rd
October 2001. Further, an application by the plaintiff to vacate the
order dismissing the action was also dismissed on 24^th
June 2002. Having unsuccessfully failed to restore the initial action
to the list, the plaintiff then proceed to file this action
by a writ
dated 31^st
March 2004. The basis for filing this claim, according to the
plaintiff, was that the claim was different to the one that was
dismissed and that at the same time, the defendant admitted in his
defence to have paid the plaintiff the amount of the claim (the

amount in question being K38, 569.00); a fact which the plaintiff
asserts is not true. Briefly, I would say that this was the
background to the present proceedings.

Thus
having outlined the background, I feel that I should proceed to
immediately give my views. Firstly, I would like to highlight
the
fact that by his own admission, the plaintiff conceded to the fact
that this is a new action. In that regard then the limitation
period
will have to be considered from the time the cause of action arose,
which was on 6^th
March 1997, to the time that the writ for this action was filed,
namely on 31^st
March 2004. From my calculations, and indeed I would agree with Mr.
Chilenga, seven years had elapsed. At the same time I did have

recourse to Section 148(1) (b) of the Road Traffic Act, and noted
that the section does not restrict itself to a third party but
rather
talks of the right of an injured party to claim against the insurer
expiring after two years. In this instance, the plaintiff,
being the
injured party, is in my view caught up by the section, especially
since this is a fresh action.

It
is therefore in view of the above, that I do agree with the defendant
and hold that the plaintiff’s action is time barred and
that it is
frivolous, vexatious and an abuse of the court process and that it
should be dismissed with costs. I do thus accordingly
dismiss the
action with costs.

Made
in Chambers this………day of…………………………..2006.

K.T.
MANDA

SENIOR
DEPUTY REGISTRAR