Diele Estates Limited v Manondo (Civil Cause 530 of 1985) [1987] MWHC 10 (16 November 1987)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 530 OF 1985 BETWEEN: DIELE. ESTATES LIMITED 1,-2.2 cece ws mers cane crccs PLAINTIFF - and - AD - MANONDG 6 pet DEFENDANT Coram: UNYOLO, J. Kaliwo, Counsel for the Plaintiff Defendant, absent, unrepresented Manda, Court Reporter Namvenya, Official Interpreter JUDGMENT The plaintiff claims from the defendand the sum of K6,500 being money had and recegved HY tie +efendant to the use of the plaintiff. It is pleaded that by a verbal agreement the defendant agreed to buy a second-hand maize mill, casting K6,500, for the plaintiff and that in cansequence the plaintiff for its part paid the said sum of K6,500 to the defendant. It is further pleaded that despite numerous requests fro the plaintirf the defendant has not delivered the said maize mii. Tne praintiff states that in the premises the consideration for which the payment herein was made has wholly failed and consequently claims the said sum of K6,500 from the defendant. In his defence the defendant denies having entered into an agreement as alleged by the plaintiff or having for that matter had any dealings with the plaintiff. He denies the plaintiff is entitled to the K6,500 or at all. This case was first set down for hearing on the 20th October, 1987. On that day Counsel for the defendant informed the Court that the defendant was out to the Republic of South Africa. Counsel disclosed that the defendant was very much aware the case had been set down for hearing but decided nonetheless to leave, without informing Counsel for that matter. I then adjourned the case for three weeke and when the Court resumed on the 12th November I first heard an application on the part of the defendant's Counsel in which he sought the leave of the Court to cease acting for the defendant. Again of u's 3 the defendant was not before the Court and after hearing Counsel I granted him leave as prayed. Thereafter I proceeded to hear this case as no good reason had been advanced for the defendant's absence. Indeed it was clear that the defendant had deliberately decided to keep low with a view to defeating the course of justice in this case. Having heard the evidence of the plaimtifre’s witnesses I am satisfied and I find that the defendant did agree to buy a maize mill for the plaintiff and that the plaintiff gave the defendant the cum Of K6,500 for this purpose. PW1 tendered in evidence on this aspect a paid cheque drawn by the plaintiff in favour af the defendant. I am further satisfied and I find that the defendant has neither bought and delivered the maize mill nor paid back the K6,500 to the plaintiff. Finally, I am satisfied that the plaintiff is entitled to this ‘Sum. In the result I find that the plaintiff has proved its claim against the defendant and I enter judgment for the plaintiff for the sum of K6,500 with costs. PRONOUNCED in open Court this 16th day of November, 1987, at Blantyre. JUDGE