IN THE HIGH COURT OF MALAWI
LILONGWE DISTRICT REGISTRY
CIVIL CAUSE NO. 118 OF 2005
MRS PRICILLA M.C. ZIBA ......... PLAINTIFF
MR JAFALI SAITI MAKUMBA t/a PLANET CAR PARTS ..1ST DEFENDANT
NICO GENERAL INSURANCE COMPANY LIMITED 2ND DEFENDANT
Coram: Ligowe: Assistant Registrar
Chilenga: Counsel for the defendants
is the second defendants application to be removed as a party
wrongfully joined under Order 15 Rule 6 of the Rules of the
Court. There is an affidavit in support sworn by Marshal Chilenga,
counsel for the defendant and an affidavit in opposition
Likhwa Robbie Mussa, counsel for the plaintiff.
The facts of the case are as follows. The plaintiffs motor vehicle was involved in an accident with a vehicle driven by the 1st defendant, a Toyota Hiace Mini bus Registration Number MZ 4332. The 2nd defendant is being sued as an insurer of the said mini bus.
In the affidavit in support counsel deposes that the motor vehicle number MZ 4332 was sold by Mr. L.J. Chinula to Mr. Makumba at the time of the accident. That the 2nd defendant had insured the vehicle on behalf of the said L.J. Chinula, the previous owner of the vehicle only and no other person was party to that contract. That the 1st defendant is not covered by the insurance policy between the 2nd defendant and Mr. L.J. Chinula in terms of S 148 of the Road Traffic Act. That under regulation 25 of the Road Traffic (Registration and Licensing) Regulations, a purchaser of a motor vehicle must change ownership within 7 days and have a new certificate of insurance. That the insurance policy with the 2nd defendant lapsed on the sale of the vehicle and the 1st defendant has no rights to it by virtue of the said regulation 25. That the 2nd defendant was wrongly joined as a party to this action as there was no policy of insurance at the date of the accident.
In the affidavit in opposition counsel for the plaintiff agrees that the vehicle was sold by Mr. L.J. Chinula to Mr. Makumba. That after the sale Mr. Chinula renewed the policy of insurance on the vehicle in his own name. That it was the intention of the parties that property in the vehicle would transfer to the 1st defendant on completion of payment of the purchase price and as such the property in the vehicle at the time of the accident was still in favour of Mr. Chinula who accordingly proceeded to renew the policy of insurance. Counsel argues in the affidavit that under the Sale of Goods Act, property in specific or ascertained goods is transferred to the buyer at such time as the parties to the contract intend it to be transferred. The vehicle still belonged to Mr. Chinula at the time of the accident.
During hearing Mr Chilenga cited Mavuto Tchongwe v. Mrs. Mulinde and NICO General Insurance Co. Civil cause No. 3559 of 2002 where His Honour Tembo A.R. held that where a vehicle has been sold the liability of the insurer lapses and he struck out the 2nd defendant from the action.
I had occasion to read regulation 25 of the Road Traffic (Registration and Licensing) Regulations. It does not however provide as deposed by counsel for the 2nd defendant in his affidavit that a purchaser of a motor vehicle must change ownership within 7 days and have a new certificate of insurance. The regulation provides for the date on which a motor vehicle is to be licenced. Obviously licencing a motor vehicle is not the same as insuring it. There is talk of a seven day period under regulation 25(3), but that is a period within which a motor vehicle may after the date liable for it to be licenced be allowed to be operated on a public road while the registration number allocated to it prior to the date on which the motor vehicle licence became null and void is displayed. I tried to look at the Road Traffic (Insurance) Regulations but found no provision to the effect submitted by counsel. I am not ready therefore to accept Regulation 25 of the Road Traffic (Registration and Licensing) Regulations as authority for the proposition that a purchaser of a motor vehicle must change ownership within 7 days and have a new certificate of insurance.
In Mavuto Tchongwe v. Mulinde and NICO General Insurance Co. (op cit), the 2nd defendants case was that by the time of the accident the 2nd defendants insured had sold the motor vehicle to someone else such that it had no liability under the contract of insurance as the same had lapsed upon the sale of the motor vehicle. There were two reasons for that argument. Firstly the contract of insurance had a note that the contract was to lapse upon the sale or change of ownership of the motor vehicle. Secondly that in terms of section 148 of the Road Traffic Act what was insured was the use of the motor vehicle by the 2nd defendants insured, such that once the vehicle in question was sold there was no one insured under that contract. That is true in the circumstances of that case.
However, generally the person insured, meant in section 148, may not necessarily be the owner of the vehicle. Section 143 of the Road Traffic Act provides that a policy of insurance that complies with the requirements of the Act must insure such persons or class of persons as may be specified in the policy in respect of any liability that may be incurred by him or them in respect of the death of or bodily injury to any person, or damage to property.
The plaintiffs affidavit evidence in this case shows that the 2nd defendant had insured the vehicle on behalf of the said L.J. Chinula, the previous owner of the vehicle only and no other person was party to that contract. My understanding of that statement is that it is talking of the vehicle being insured and not the user. No evidence has been given as to the persons or class of persons insured under the policy of insurance in question. It is that evidence that would show whether the 1st defendant in this case is excluded. If so, the 2nd defendant would then be a wrong party to the present proceedings. In the absence of that evidence this court has difficulties in deciding whether the 2nd defendant was wrongly joined as a party.
The application is dismissed. Costs will be in the cause.
Made in chambers this day of August 2005.