China Africa Energy Investiments v Fred Kapito t/a Fred & Ted Properties and Felix Nakoma (Civil Cause 500 of 2017) [2018] MWHC 1233 (2 March 2018)

THE REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY CIVIL CAUSE NO.500 OF 2017 BETWEEN China Africa Energy Investments............................................................................. Plaintiff Vs Fred Kapito t/a FRED &TED properties......................................................... 1st Defendant Felix Nakoma........................................................................................ 2nd Defendant Coram: M. K, Chimwaza Assistant Registrar Mapira Counsel for the plaintiff Both Defendants not present but duly served with notice through Counsel Mpandaguta Court clerk JUDGMENT ON ADMISSION The plaintiff commenced action claiming the sum of I<2,890,000.00 which was paid to 1st defendant as an estate agent for the 2nd defendant in respect of rental of a house on plot No. 6/60 at Area 6 in Lilongwe. This was three months rent and one month holding deposit. Before the plaintiff could occupy the said premises he discovered inherent problems of which he informed the defendant. On 6th April, 2017 the defendants agreed in writing to pay back the said sum of money on or before 1st June 2017. It is on the basis of this agreement that the plaintiff is now applying that a judgment on admission should be entered against the defendants. However, the defendant filed a defence to the plaintiffs claims and deny liability for any losses and claim for interest on the principal sum at 24%. The defendant also filed a counter claim for K850,000.00 which was one month notice pay which was agreed upon in the tenancy agreement of which the plaintiff terminated without giving notice. The defendants claims interest on the sum at 5% above bank lending rate. Issue for Determination Whether there is an unequivocal clear admission warranting a judgement in favour of plaintiff Reasoned Analysis of Law and Facts Order 27 rule 3 of the RSC entitles a party to enter judgment on admission and states as follows: Where admission of fact or of part of a case by a party to a cause or matter either by his pleadings or otherwise, any other party to the cause or matter may apply to the court for such judgment or order as upon those admissions he may be entitled to, without waiting for the determination of any other question between the parties and the court may give such judgment or make such order, on the application as it thinks just. The purpose of this rule is to enable a party to obtain a speedy judgment where the other party has made plain admission entitling the former to succeed,... it applies where either there is a clear admission of facts in the face of which it is impossible for the party making it to succeed. Ellis vs Allen [1914] 1 Ch. 904,908-909. In Ranking vs Garton Signs Co. Limited [1972] 2 All ER 1185 the court gave guidance in the following terms: "... the ...question to be asked is this, have the defendants made a clear admission of liability or not, and in order to discover that, as I have already observed, one has to look at the letter and at the pleadings in each particular case ” In the present case the plaintiff has relied on the letter of undertaking that the defendant made on 6th April 2017 that they will pay back I<2,890,000.00 after identifying a tenant to occupy the house after running an advert for 45days from 6/4/17 to 1st June 2017. This meant the refund was to be made between on or before 1st June 2017. In defense to the statement of claim under paragraph 7 the defendant have admitted liability to pay the sum of K2,890,000 once they find a new tenant. They have denied to pay interest at 24% p/a on the principal sum, or to pay damages for there has been no breach of contract or to reimburse legal practitioner collection costs amounting to I<505,027.50 as the same has been amended in the Legal practitioner (Minimum Scale Charges) Rules 2016 which now provides that collection costs are recoverable from own client only. The defendants have proceeded to raise a counterclaim basing on the tenancy agreement which was entered on 5th April 2017 in which the 1st defendant acting on behalf of the 2nd defendant was Landlord while the plaintiff was a tenant at a monthly rental of I<850,000 payable quarterly basis. It was a term of the tenancy agreement that the agreement may be terminated by either party with one month notice and in writing and therefore the defendant now claims one month rent’s pay in lieu of notice since the plaintiff terminated the agreement without a month’s notice. Alternatively the defendants claim a set off of the principal payable to the plaintiff to the extent of the money claimed in paragraph 14(a) of the defendants defence and counter claim. This court upon looking at the statement of claim by plaintiff, defence and counter claim, what is coming out clear is that the defendants owed I<2,890,000 which they indeed undertook to pay upon running an advert within 45days and identifying a new tenant that was going to be between April and 1st June 2017. The new tenant was to be found and repayment made within this period. This fact has not been denied by the defendants. Rather the defendants have raised a counterclaim for one month rent in lieu of notice which was not given and the plaintiff have admitted that in the tenancy agreement there was a term for termination to give one month notice. See para 3 of defence to counterclaim. The defendant have alternatively claimed a set off of this one month rent which is {<850,000.00. In so far as the defendants have admitted owing the plaintiff K2,890,000.00 which remains unpaid up to date and in so far as the plaintiff has not denied the defendants counter claim for one month rent in lieu of notice, this court enters judgment on admission to the extent of these admissions only. ORDER A judgment on admission is entered in favour of the plaintiff for the sum of K2,890,000.00 less the counter claim of IC850,000.00'which was one month rent in lieu of notice which has not been challenged. The total payable by defendant to the plaintiff is K2,040,000.00. plus costs of the action to this stage. The other claims will proceed to trial by any party still interested to pursue them. Made in Chambers this day of. .2018 Madalitso Khoswe Chimwaza (Mrs) ASSISTANT REGISTRAR