TRANSPORT and Communications Minister Mutotwe Kafwaya has asked the Lusaka High Court to dismiss a case where he has been sued for allegedly refusing to surrender a Hino Truck that was involved in an accident after an insurance company compensated him for the damage.
Kafwaya, who is also the proprietor of Nsansamina Enterprises, has argued that the case is an abuse of court process as the action, and all claims were already settled and that it cannot be re-opened before the same High Court.
In this matter, Swan General Insurance Company Zambia Limited wants a declaration that it is entitled to the motor vehicle, being Hino Truck registration No. ABZ 5827 and an order that Kafwaya (trading as Nsansamina Enterprises) releases, or surrenders the motor vehicle to it.
It also wants damages for loss of use of the motor vehicle, any other reliefs that the Court may deem fit, interest and costs.
However, Kafwaya now wants the matter dismissed.
According to an affidavit in support of summons to dismiss action on a point of law, Kafwaya stated that on December 6, 2017, he commenced legal proceedings against Swan General Insurance Company in the High Court under cause number 2017/HP/2134.
He stated that in the said matter, he was claiming an order for payment of K170,000 being reimbursement for the comprehensive insurance policy that was taken out by Swan General Insurance Company with him for the truck, which was involved in an accident in South Africa on March 22, 2016.
Kafwaya stated that he was also seeking, among others, an order for payment of K1,100,000 for the loss of business and earnings that the truck used to make from the date of the occurrence of the accident to-date.
He stated that on January 11, 2019, the Court entered judgement in his favour and ordered Swan General Insurance Company to indemnify him against any loss or damage to the motor vehicle that came to be as a direct consequence of the accident in issue.
Kafwaya stated that following the said entry of the judgement, the matter was referred for assessment of damages and the Deputy Registrar awarded him K156,000 as a total reimbursement of the motor vehicle, and K272,658 as damages for loss of business among other relief.
“Following the entry of the said judgement, the parties herein entered into a consent judgement wherein all their claims were settled in full and final settlement,” he stated.
Kafwaya further stated that to-date, Swan General Insurance Company had not paid the total reimbursement for the insurance, save for the costs and damages for loss of business awarded to him in the said action.
He stated that the actions of Swan General Insurance Company in commencing this action was an abuse of court process as the action and all claims herein were already settled in full and finality.
“A case that has already been closed on the merits cannot be re-opened before the same court as all High Court judges exercise equal power and authority. The correct procedure that Swan General Insurance Company ought to have followed is to take out requisite applications to vary the terms of the said consent judgement or, indeed, appeal against the Consent Judgement when the situation permits and or where there are probable grounds,” Kafwaya stated.
He argued that entertaining this action had the potential to bring a mockery to justice as conflicting positions might be arrived at, thus bringing the administration of justice into disrepute.
Kafwaya stated that this was a proper case in which an action could be dismissed for being res judicature and an abuse of court process.