Banda v NBS Bank Limited (Civil Cause 974 of 2015) [2017] MWHC 837 (1 May 2017)

.. . ,-............ ~-... . 1 IG1-; COlJF: . · "-;:.·""."'t;.....,,._ , ...... ~ - . · ·' BAARv ..... -~ ... ~ .... : .. IN THE HIGH COURT OF IV!ALA\AJI LILONGWE DISTRICT REGISTRY CIVIL CAUSE NUMBER 974 OF 2015 ANTHONY PAUL BANDA BETWEEN AND NBS BANK LIM ITE D----------------------------------D E FEND ANT CORAM: HON. JUSTICE M. C. C. MKANDAWIRE Mataka, Counsel for the Plaintiff Silungwe, Counsel for the Defendant ltai, Court Interpreter RULING This is a summons to strike out action for disclosing no cause of action, for being frivolous and vexatious and an abuse of the court process. The application is supported by an affidavit together with skeleton arguments. The defendant opposes this application and there is also filed an affidavit in opposition together with skeleton arguments. It is settled as a fact that through an agreement dated 17th April 2008, the plaintiff obtained a loan of MK3.8 million from the defendant to be repaid in monthly instalments until 20th April 2023. The plaintiff gave his property title number Chitipi 7 /2/30 as security for the loan. The said agreement in clause 9 provided for what would happen in the event of a default by the plaintiff. Clause 15 further provided that the instrument herein comprised the complete agreement between the bank and the borrower. It further provided that no amendment, variation, alteration, consensual cancellation o( or addition to this agreement shall be valid unless reduced into writing and signed by the bank and borrower. Since 2012 the defendant defaulted in the repayment of the loan. The defendant demanded for full payment of the loan and gave notice to sell the charged property. This demand triggered the plaintiff to institute the present proceedings seeking an order to restrain the defendant from exercising its rights of sale under the charge and that the repayment of the loan should be pended until the plaintiff is paid his pension by a third party who are the pension administrators. I have looked at the affidavit evidence in this matter. My first observation is that the loan agreement between the parties which is tendered as "051" is very clear as to what are the terms of this loan agreement. Clause 9.1.7 and 9.3 clearly stipulated as to what would happen in the event of a default such as the one at hand. I am however aware that when the plaintiff defaulted to service the loan in 2012, he attempted to verbally discuss the issue of his pension with the third party with the defendant. Unfortunately, this discussion did not amount to an amendment of the loan agreement. The plaintiff's counsel also raised the issue of wrong reconciliation of figures. It is however not clear as to how this issue has come on the scene as it is not particularly pleaded in the statement of claim therefore it cannot be introduced through the backdoor. Whilst I do feel sorry for the plaintiff as to what has transpired with regards to his pension dues, I however do not find that the plaintiff's claim does disclose any cause of action in as far as the defendant is concerned. I therefore order that the action herein should be struck out with costs to the defendant. MADE THIS DAY OF MAY 2017 AT LILONGWE M. C. C. MKANDAWIRE JUDGE 2