Nyang'wa v City Motors Limited (Civil Cause 476 of 1986) [1987] MWHC 43 (8 December 1987)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 476 OF 1986 BETWEEN: B. R. NYANG'WA .... .............. PLAINTIFF - AND - CITY MOTORS LIMITED .............. DEFENDANT Coram: BANDA. J. Nakanga of Counsel for the Plaintiff Chizumila of Counsel for the Defendant Gausi (Mrs), Court Reporter Chigaru, Official Interpreter a te me eh meee ee ee ce a ne ee te eee ee ne ne ee ne ce JUDGMENT The plaintiff is suing the defendants in conversion and is claiming damages. The facts in this case are not greatly disputed. The plaintiff was at the material time the owner of a motor vehicle Registration Number BE 5950 Datsun Double Pick-up. The defendants are a garage proprietor having branches in Blantyre and Lilangwe. It would appear that sometime in 1985, it is not clear exactly, the plaintiff was desirous of having his motor vehicle repaired so that he could resell it. He, therefore, decided to take it to the defendants at their Lilongwe Branch to have the car repaired. The plaintiff was employed, at the time, by Wood Industries as an Internal Auditor It was the plaintiff's evidence that he used the vehicle for travelling from house to office and that he also used it on inspection of his farm. He said that when he took his vehicle for repairs to the defendants he met the Branch Manager, Mr. Mackenzie. He stated that he told Mr. Mackenzie that he wanted his car repaired. He stated that late in December, 1985, he was told that his vehicle was ready and could be collected. He collected the car but a week later he received an invoice which purported to give details of repairs and charges and that on closer scrutiny he discovered that the invoice was inflated. He, therdpre sent it back to the defendants for rectification. He said that in March, 1986, another invoice was issued with a lower amount and that he accepted those adjusted amounts which showed that the repair charges amounted to K1270.40. The plaintiff agreed that before the defendants started to repair his car a rough estimate of how much repairs would cost was made and that it was only after he accepted the estimate that the defendants started to repair it. The plaintiff also agreed that he told the defendants that he would obtain a loan from his employers to meet the bill for repairs to his car. He further agreed that the defendants repaired his car on condition that he would obtain a loan. The plaintiff further admitted that he told the defendants that there would be no difficulties in getting the loan because it was one of his conditions of service to obtain such loans. The plaintiff also agreed that the term of payment which he agreed with the defendants was that he would obtain a loan. The plaintiff did not suggest in his evidence that he had agreed with the defendants that he would pay the repair charges on account or by instalments. The defendants' evidence was that the plaintiff went to see Mr. Mackenzie, the Branch Manager of the defendants at Lilongwe and that the plaintiff requested Mr. Mackenzie to have his vehicle repaired. It was Mr. Mackenzie's evidence that he told the plaintiff that before they could start reparing the car he would give the plaintiff a rough estimate of the cost of repairs. It was also Mr. Mackenzie's evidence that he told the plaintiff that for the repairs to be carried out the terms of payment were to be on a cash basis. In other words, that after the repairs were effected they would be paid cash immediately. Mr. Mackenzie stated that the plaintiff said there would be no pro- blems in the defendants' getting paid because the plaintiff would get a loan from his employers and that they could, therefore, start repairing his vehicle. Mr. Mackenzie stated that after the repairs had been made the car was only released to the plaintiff after the plaintiff had told him that he would bring a cheque immediately. Mr. Mackenzie stated that because of the trust he had for the plaintiff he allo- wed him to take the vehicle. There can be no doubt in my judgment, on the evidence before me, that the repairs to the plaintiff's vehicle were carried out on the basis that he would pay for those repairs from the loan which he had assured the defendants he would get as a matter of right from his employers. Mr. Mackenzie told this Court that after a week he contacted the plaintiff to remind him about the payment for repairs on his vehicle. It was Mr. Mackenzie's evidence that the plaintiff kept on making several promises which came to nothing. It would appear that sometime in April or June, 1986, Mr. Mackenzie happened to have come to Blantyre Branch of the defendants and while there he saw the plaintiff parking his vehicle on the defendants' parking area. Mr. Mackenzie invited the plaintiff to go and see the defendants' Credit Controller who asked the plaintiff about the repair charges which were still outstanding. It is agreed by both parties that the plaintiff was told that the defendants would seize the motor vehicle and that it would only be released on payment of the repair charges in the sum of K1270.40 by the plaintiff, It was Mr. Mackenzie's evidence that the plaintiff stated that he would go and look for money and that he would come back on the following day to pay. The only issue in dispute between the parties, therefore is whether the defendants had any lawful justificatior for seizing the plaintiff's motor vehicle. a Mr. Nakanga has submitted that the defendants seizure of the plaintiff's motor vehicle was an inter- ference with the plaintiff's property and that it amounted to conversion. He has therefore, urged this Court to consider wnether the act of the defendants in taking the plaintiff's car was or was not conversion. The defendants' answer to the plaintiff's case is that they had legal justification to seize the plaintiff's vehicle because he had not paid for repairs made to his vehicle. Mr. Chizumila has submitted that the defendants being a garage proprietor and having effected repairs to the plaintiff's motor vehicle were entitled to a lien on the car. A party is guilty of conversion if he exercises a right of dominion over another party's property which is inconsistent with the right of ownership of that other party. The defendants in their evidence and in the submissions of their Counsel have stated that they have no other right over the vehicle except the right to retain it until they are paid the repair charges. The general lien entitles a person in possession of chattels to retain them until all claims or accounts of the person in possession against the owner of the chattel are satisfied. In order to sustain a claim to a lien the party contending for such a right must be in possession of the goods retained and possession must be continuous. There can be no doubt, on the facts before me, and I find that repairs were made to the plaintiff's motor vehicle on his request and while that motor vehicle was in the defendants: possession they had the right to retain it until the repair charges had been paid. 4/ The issue which I must decide is whether the motor vehicle was released to the plaintiff voluntarily in which case possession would have been lost or whether the motor vehicle was released to the plaintiff through some misrepresentation. From the facts before me and as a result of the evidence adduced both by the plain- tiff's and the defendants: witness there can be no doubt that the vehicle was repaired on condition, as the plaintiff himself said in his evidence. that the defendants would be paid from a loan which the plaintiff would obtain from his employers. I am satisfied and I find that Mr. Mackenzie was a more truthful witness than the plaintiff. I found the plaintiff an evasive witness and in some instances he denied matters which could not be denied: for instance, he stated that he did not know why the motor vehicle was being detained by the defendants when sor- dieron in» his evidence in chief he told the Court of the discussions between himself. Mr. Khoviwa, Mr. Mackenzie and Later on with Mr. Sabadia when he was specifically told why his motor vehicle was being detained. I am satisfied. therefore, that the motor vehicle was released to the plaintiff because he had told Mr. Mackenzie that he would pay for the repairs from a loan he would get from his employers. I am further satisfied that Mr. Mackenzie released the vehicle to the plaintiff because he believed the plaintiff would bring a cheque. LI accept the evidence of Mr. Mackenzie when he stated that the repairs were carried out on a cash basis and that no payment on account was agreed. Indeed, the plaintiff did not specially suggest that the payment was on account although an attempt was made to draw such inference from Exhibit 4. That exhibit does not prove by itself that the repairs were to be paid on account. I am, therefore. satisfied that the repair work was done on the basis that pay- ment would be made on cash basis from a loan the plaintiff would get. Consequently. i find that the defendants released the mc or vehicle to the plaintiff because they were influenced by the plaintiff's statement that he would pay the repairs from a loan he had assured the defendants he would have no diffi- culty in getting. In that situation. therefore, the defendants lost possession because of misrepresenta- tion which the plaintiff had made. I find, therefore, that the defendants had a right to seize the motor vehicle again until the repair charges were paid, Furthermore, I am satisfied that the defendants did not commit conversion as there is no evidence that they had exercised the right of dominion over this vehicle inconsistent with the rights of the plaintiff. Bf. 2 ewes Admittedly, there was an advertisement inserted in the Press threatening to sell the plaintiff's motor vehicle. That advertisement has been explained by the defendants and I accept that explanation that there was no inten- tion of selling the motor vehicle. I am satisfied, there€ore, that the plaintiff has failed to prove his claim on the balance of probabilities that the defend- ants' converted his vehicle. The defendants have counterclaimed against the plaintiff in the sum of K1270.40. That claim is admitted by the plaintiff. There is an additional claim by the defendants for a sum of K141.00 being the alleged costs incurred in placing the advertisement in the paper. No evidence was placed before me to show that that advertisement was placed in the paper and that a sum of K141.00 was incurred in the process. That claim has not been proved. I would, therefore, dismiss the plaintiff's claim with costs. I find that ih: nufecss .taueckerme ce claim for the sum of K1270.40 has been proved and there will be judgment for the defendants in the sum of K1270.40 with costs. PRONOUNCED in open Court this 8th day of December, 1987, at Blantyre. R. A. Banda JUDGE