DBR International Wap Limited v Jiag & Ors. (Civil Cause 125 of 2014) [2017] MWHC 123 (11 May 2017)

REPUBLIC OF MALA WI IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 125 OF 2014 BETWEEN: DBR INTERNATIONAL WAP LIMITED PLAINTIFF -AND- JING ZHI JIANG, ZHEN ZHEN JIANG& HANG QING JIANG T/A DA CHINA RESTAURANT DEFENDANT CORAM: ANNELINE K'ANTHAMBI ASSISTANT REGISTRAR Mr. E. Mbw'ana Counsel for the Plaintiff Defendants Not Present (Unrepresented) Mrs. J. Chilimampunga Court Clerk ORDER ON SUMMARY JUDGMENT This is an application Order 14 of the Rules of the Supreme Court. The Applicant and skeletal raised. of the Application, by the plaintiff herein seeking arguments in support filed an affidavit in which the issues are summary judgment under by amended writ of summons dated 25th March 2014 which was The plaintiff later amended on28th May 2015 commenced an action against herein Jing Zhi Jiang, Zhen Zhen Jiang and Hang Qing Jiang t/ a Da China Restaurant, revenue realized written the sum of MK15, 727, 572.61 being its share of the and the respondent. between the plaintiff which it installed from the gambling following I will reproduce agreement the defendants machines claiming a llPage the relevant paragraphs o f the statement of claim. According to the p laintiff's statement of claim, 6.the parties herein had entered into a written installed gaming machines agreements ( Site by to be operated and at Shire at Mzuzu Hotel, Da China Restaurant Hotel in Limbe. By the said Site Agreements, would retain 33.33% of the net gambling revenue. it was agreed that the That the said net in Blantyre by which the plaintiff Agreement") the defendants Highlands defendant would be calculated which would be paid to the plaintiff day of every month together defendant. by deducting from the total gross revenue 66.666% thereof twice every month on the 7th and the 22nd with all the gaming taxes payable by the the amount payable to the plaintiff by the defendant, the term of the agreement stipulated that in case of any 7. That a further regarding dispute defendant sum as calculated dispute on the outstanding lending would nevertheless by the plaintiff to pay an amount equivalent to such of the on due dates pending the resolution continue and that the plaintiff would be entitled to charge the defendant interest prime amounts at the rate of 2% above the prevailing rate as quoted by the plaintiffs bankers from time to time. 8. That in breach of the said agreement and in total disregard to repeated demands by the plaintiff plaintiff of the months of July 2013 to September proceeded to terminate the site agreements. the sum of MK15, 727, 572.61 being its share of the revenue 2013. Consequentially in respect the plaintiff for payment the defendant has failed to pay the therefore 9. The plaintiff (i)The said sum of MK15, 727, 572.61 (ii)Interest claims: on the said sum at the rate of 2% above the prevailing prime lending time from the due dates to the date of payment. rate as quoted by the plaintiff's bankers from time to (iii)Costs of this action. Counsel for the Plaintiff action and that their defence is a sham. alleges that the defendants have no defence to the file any skeleton on this particular The Defence did the defence say anything the defendants acknowledged 2016. However the defendants' on the other hand did not file any affidavit In short, the defence in opposition chose not to neither arguments. application. The record does however show that were duly served with the summons which they duly on the 12th of May 2016 as well as on the 13th of December defence states as follows: 21Page 1. The defendants a dmit the contents o f paragraph 1 o f the statement of claim 2. The defendants admit being business persons China Restaurant demand proof of the allegation. as alleged in the statement but deny trading as Da of claim and will at trial 3. The defendants admit the contents of paragraph 4 of the statement of claim. 4. The defendants deny the contents of paragraph 5 of the statement of claim and will at trial demand proof. 5. The defendants deny the contents of paragraphs 6, 7 and 8 of the of claim. statement 6. The defendnts plead that by a written agreement dated 8th October 2010 the plaintiff Zhen t/a China Da Restaurant machines installed at their premises at Ginnery Corner. and Jiang Qing Xi, Jiang Jing Zhi and Jiang Zhen agreed to have WAP gambling 7. The machines were duly installed and operated in accordance with the said written agreement. 8. The defendants have no business interests at Mzuzu Hotel and Shire Highlands plaintiff regarding these sites as alleged by the plaintiff. Hotel and are not aware of any agreements with the 9. The defendants state that sometime in August and September thieves broke into their premises on 2 separate occasions and went away with a total sum of Kl, 551, 681.37 which was kept in an office in the gambling area and the incidents were reported to the Malawi Police. Save as hereinbefore expressly allegation specifically contained set out and traversed in the statement seriatim. admitted the defendant denies each and every of claim as if the same were herein I will now proceed to consider basis of the application under which the application consider the defence of claim and as it stands against of the application in support herein. the application on the made herein and the affidavit in support viz the law for summary judgment is made. In considering the application, I will as it stands against the claims in the plaintiffsstatement the other evidence the plaintiff has furnished The Law Order 14 rule 2 of the Rules of the Supreme Court states as follows: (1)An application under rule 1 must be made by summons supported by on which the claim, or part of a claim, the facts verifying an affidavit 3IPage to which the application deponent's the case damages claimed. is based and stating that in the belief that there is no defence to that claim or part, as may be, or no defence except as to the amount of any relates (2)Unless the Court otherwise directs, an affidavit for the purposes of or belief with the this rule may contain statements and grounds thereof. sources of information v Mahomed t/ a CNC Medical It was stated by Ndovi, J as he then was, in the case of Oasis International another summons under Order 14 the first two considerations and (b) whether comes within the order; requirements [1996} MLR @ 62 that "in every are (a) whether the case for proceeding has satisfied the plaintiff under Order 14." Supplies and the preliminary Under Order 14 it is important that the affidavit should verify the claim as disclosed in the statement application also specifically action. 16(2) MLR 899@901 state that in the defendant's Hassam and Co v Hassam Sacranie in support of the of claim and to the .f 1993} Industries opinion t/ a Plastichem there is no defence on the requirement Explaining further then was stated that erifying was normally done by reference 15 MLR @422; Reliance Insurance Agencies facts relied on, as required under order 14, Mwaungulu R, as he by Order 14 rule 2, v Rustam, [1992} 15 MLR@426. to the statement of claim. Rasul v Tutla [1992} Whether or Not to Order the Summary Judgment: The preliminary requirements for granting an order of summary judgment under order 14 are the following;- a)The defendants b)The defendant c)The affidavit in support of the application should be served with a statement should give a notice of intention to defend; should comply with the of claim; of rule 2. requirement The machinery The basis of an order under Order 14 is that the plaintiff verily believes that there is no defence. Obviously belief. is properly application unless the defendant shows dismissed. plaintiff of Order 14 works on the basis that if the plaintiffs he is prima facie entitled is of Order 14 is to enable the and The cases lay down that the purposes there must be good grounds for such if he can prove his claim clearly, cause to the contrary or the application summary judgment constituted, to judgment without trial, 41Page if the defendant is unable to raise a the"claim Services which ought to be tried. (PTY) Ltd [1995] 2 MLR@611. bona fide defence, or raise an issue against Freight See Manica (Malawi) Ltd v Interocean Regard being had to case before me, I find the following satisfied; requirements were duly in a "temporary file" As such there is no original a)That the defendant herein were duly served with a statement of claim. in the Let me also mention on the outset that most of the documents record herein are not original. of this The record of the proceedings action are contained file gone missing. and the attendant the court, although matter filed by the defendant the proceeding evidencedby Associates there was no statement of claim was filed with that is however evidence to defend the well aware of all of claim as lawyers Beal, Dalken & opened as a result of the main writ and statement herein and was duly served with the statement amendments, as well as defence that of claim served on them in the first place. but only copies of the same. There a defence served on the plaintiff's on the 29th of April 2014. There cannot be such a defence there is no return of service the defence was and no intention herein, if b)The other pertinent to be determined question support of the �pplication above. The answer is the affidavit, clearly deponed by him to be true. And one of the facts deponed as shown in paragraph." of rule 2, stated with the requirement This is so because by paragraph the facts shows that deponent verily believes is whether the affidavit in the positive. complied 2 of in The remaining circumstances, clearly, issue against Interocean Freight issue to be decided is whether the Plaintiff Have the plaintiffs judgment without trial. unable to raise a bona fide defence, or raise an Ltd v the claim which ought to be tried? See Manica (Malawi) can obtain, proven their claim in the Services {PTY) Ltd [1995] 2 MLR@ 611. and is the defendant From the reading of the parties' support of and in opposition do find that the plaintiffs judgment to be entered. Here is why: statement to the application have made out a partially of claim, defence and affidavits for summary judgment herein, clear case to warrant in I 1. What is very clear is that the parties herein entered into a business agreement. In plaintiffs Restaurant. the first place, there is a 'site agreement and one Jiang Jing Zhi representing between the himself and Da China referring This particular agreement is specifically to the site SI Page as there is ample evidence to support the claim that they entered cannot Site Agreement The defendants with DBR international as Da China Restaurant. therefore as traversed in paragraph 2 of the of installation deny trading as Da China Restaurant, defence, WAP Limited. In the first place into an agreement there is a Standard between Warwick N. Ofsowitz, DBR International and Jiang Jing Zhi WAP Limited (the "route operator") representing Da China Restaurant and Himself. This document was signed by Jiang Jing Zhi on the 20th of August 2010. Whereas purportedly the page on which the words "STANDARD SITE AGREEMENT Between Warwick N. Ofsowitz, DBR International and JIANG JING ZHI Representing; appear the name of the restaurant elsewhere in the agreement, the prospective site licence Jiang Jing Zhi endorsed (see paragraph Restaurant understood it to mean one and same thing. It is therefore defendants condoned the WAP LIMITED (the route operator) DA CHINA RESTAURANT & HIMSELF" as his street address "CHINA DA RESTAURANT" So whether the business or Da China Restaurant, it would appear both parties to deny liaoility based on this inconsistency too late for the when they had is stated as DA CHINA restaurant, is called China Da 12.1.2). holder, namely same. between the plaintiff the commtlnication purportedly one Mr. Carey Jiang as found on exhibit However, the defendants, evidence showing that the defendants the said business acknowledgement that the one who signed for the agreement, to, was JJ, a family member. In this part of his communication wofsowitz.@comcast.net, at the aforesaid which the author did not object at Shire Highlands, that machines were and one of EM3, there is Mr Carey Jiang states and I quote, China Da and Mzuzu. There is and severally were jointly installed operating sites and to "Wanuick, Thank you for the message, my explanation are following: 1. Mzuzu rental has been paid up to June 2013, Mr Sagawa was the one who made the payment to the hotel, to be evidence. and if necessary he can send you the receipt 2. We request your lenience and cooperation, deposit we are very sure that the will be made as soon as we organize funds for Shire Highlands site. 3. On the signing of the agreement is that during the time JJ was signing I was in China and being one of our family member I had no doubt in him signing and since the machinery were installed, the agreement both sites were being GI Page managed by me and my dad, we only therefore Highlands site. asked him to manage Shire I hope this would be meet your utmost significance. Best Regards, Carey Jiang. In yet another communication Mr Carey Jiang purpotedly wrote as follows: Dear Mr Warwick, for Shire the customers since his wife left. got credits from We did not know until on his site he has just admitted that I am very sorry to inform you that JJ has failed to make the deposite Hotel up to now because he has been gambling again and all the money on his site has been gone today. When I got mail, I asked JJ why he did not make the deposit to DER. I was told at the Jill's him and would pay him back beginning he failed to deposit the money in this week, buit today because of gambling. that I want to report this to you because I need to apologise I break my promise which I have made to you that we will pay parents and I are so disappointed break his promise once again Mr Warwick, please accept my sjncere apology once again and please switch off the machines for Shire Hotel since JJ has not made the payment for his site. But would you please keep China da and Mzuzu sites running since these two sites by my dad and me so that we are able to pay DER the amount owed by JJ. Thank you very much for your understanding. about JJ. We have never though JJ would after last time what he has done. on time. My are operated Very sincerely yours, Carey Jiang. between the plaintiff and one Mr. Carey a brother purportedly These communications Jiang, supposedly ought to have established the plaintiffs involvement Mzuzu, there indeed existed herein. the line of thought I had taken toward granting demands a proper explanation inconsistency to Jiang Jing, the signatory to the site agreement, the fact that in spite of all the defendants' of denials with them in business Hotel and such businesses which also involved at Shire Highlands the plaintiffs that has been gnawing at which the summary judgment, However I have found a small inconsistency at trial. I find that the email address given in the site agreement carey802020@hotmail.com, above is carey8080 mentioned whereas the one in the correspondence I believe exhibited as is just 20@hotmail.com. this is one of the 71Page details correspondence a that would have to be dealt with at trial as they pertain to the origin of the nd the persons behind the same. In ad dition, the for m of questions the emails leaves more been a lot of editing done before printing suspicious generate the same by just typing on Microsoft word. as they do not appear to be email correspondence. them out such that they are rendered One can easily than answers in me, there seems to have while there is evidence to 66.666% of the net gambling that as per the agreement revenue, Secondly, entitled claimed herein have not been sufficiently explained and proven. purporting have been generated document contains the figures claimed does not in any way show where or how those figures came about so as to tie the same to the gambling sites in question. The document by the data logger could easily by anyone with a computer and printed out. That to be the summary note released the plaintiff the amount specifically was In short this is not a case amenable basis of what has been submitted prove the plaintiffs summary judgment in the present action. before a judge sitting alone. case. It is on that basis that I refuse to grant an order for The matter will proceed to trial to summary judgment, in court so far, as it has failed to clearly certainly not on the The application is hereby dismissed. I make no order as to costs, since the defendant did not appear. Made in Chamber this 11th day of May in the year 201 7. A. Kanthambi Assistant Registrar 8jPage