Dr. Mbvundula v Nzumara (Civil Cause 132 of 1989) [1994] MWHC 1 (26 May 1994)

r IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 132 OF 1989 BETWEEN DR M W MBVUNDULA M P MZUMARA and PLAINTIFF DEFENDANT CORM; MKANDAWIRE, J. Fachi, of Counsel, for the Plaintiff Msisha, of Counsel, for the Defendant Selemani, Official Interpreter Fukundo, Recording Officer JUDGEMENT The plaintiff is suing to recover the sum of K21,910.75 from the defendant, which the defendant allegedly had and received for the use of the plaintiff. The defendant denies liability. This case was heard in the absence of the defendant. It was first set down for hearing on 7th December 1992 and Mr Msisha of Nyirenda, Msisha and Company applied for adjournment on the basis that the defendant was in Botswana. Mr Msisha had informed him about the case, but there was no response. That was not the first time that the defendant failed to respond to his lawyers. Mr Msisha thought that the defendant was no longer interested and he told the Court he was going to make an application so that he could cease acting for him. The case was adjourned. On 30th September 1993, an application to cease acting was duly filed, but for some reason, it was not heard. The case was set down for hearing on 27th October 1993. On that date, no one appeared on behalf of the defendant. Mr Fachi said that Mr Nyirenda, who was to appear for the defendant, was in Lilongwe attending a meeting and so the case was adjourned to the following day. On the 28th, Mr Nyirenda did appear and he expressed great concern that the defendant was not co­ operating. The notice of hearing was sent to him in South Africa, but there was no response and no instructions were given. Mr Nyirenda was not in a position to proceed. In the circumstances, he applied for an adjournment. The case was adjourned to 15th and 16th December 1993. I directed that the defendant be specifically informed that if he did not attend on these days, the case may proceed in his absence. When the case resumed on 15th December 1993, Mr Fachi told the Court that - Art V he had phoned Messrs Nyirenda, Msisha & Co about the case and he was informed that both Mr Nyirenda and Mr Msisha were not available. Mr Fachi then applied that the case do proceed, in view of the difficulties experienced in the past. On these facts, I was satisfied that the defendant was either not interested in prosecuting the case or he was deliberately employing delaying tactics. I, therefore, granted the request and the case proceeded without the defendant. The plaintiff told the Court that by an agreement made between the plaintiff and the defendant, the latter agreed to build within a reasonable time two houses for the plaintiff. The houses were to be identical. One was to be built at Chileka in Blantyre District, at the plaintiff's home, while the other was to be built at Migowi in Mulanje District, at his wife's home. At that time the plaintiff was working in Lilongwe, while the defendant was working at the office of the Regional Controller of Works in Blantyre. Perhaps I should mention that the parties are related through marriage and it was the plaintiff's evidence that he trusted the defendant. It was agreed that the defendant would draw the plans, prepare the estimates, purchase the building materials, pay the workers and supervise the building. The plaintiff would provide all the financing. The defendant would charge a professional fee. As agreed, the defendant did prepare the plans and estimates for the houses. Each house was to cost K21,774.58 and the estimate was tendered as Exh. Pl. Professional fees were detailed in Exh. P2. The defendant prepared a detailed list of all the materials and their prices for the house to be built at Migowi and this schedule was tendered as Exh. P3. The plaintiff was to remit funds in phases in accordance with this breakdown. On 18th May 1988, he made out a cheque to the defendant in the sum of K8.425.00. The defendant complained that payments by cheque delayed work, as the cheques had to be cleared first. In order to solve this problem, the plaintiff gave some money to his sister in Blantyre. The sister, by the name of Mrs F E Matewere, opened an account from which she made cash payments to the defendant. She made the first payment on 6th January 1988 and several payments followed later. By 12th April 1988, she had made cash payments of K24,365.00 to the defendant. All this money was intended for the house to be built at Chileka. Due to the escalation of costs, the estimate for the house at Chileka was revised upwards to K30,000.00. Construction of the house included 2 pit latrines and the plaintiff paid a total of K5,209.10 towards these. The total cash payments to the defendants for the Chileka house was K29,594.10. Despite all this money, the house was far from being complete. As a natural consequence, disputes arose, because the plaintiff discovered that the defendant was not utilising all the money on the house. The plaintiff was forced to buy iron sheets worth K5,776.75 for the Chileka house. This then brought total expenditure on this - 3 - house to K35,350.85. From this total was deducted a sum of K720.00, being architect's fees, bringing down the expenditure to K33,171.25. That meant that the plaintiff had over-paid the defendant by K3,171.25, since the house was estimated to cost K30.000.00. The over-payment, so to say, was to be transferred to the Migowi house. The estimate for the house to be built at Migowi was K25,718.00. By May 1988, the plaintiff had made cash payments to the defendants totalling K15,676.50. Since the house was not making any progress, as it became clear that the defendant was diverting the funds, the plaintiff was compelled to purchase iron sheets for the house amounting to K5,776.25. That brought the total expenditure on the house to K21,453.75. That left a balance of K4,264.75 to come up to the estimated cost of the house. But when the over­ payment of K3,171.25 on the Chileka house was taken into account, the balance to be paid by the plaintiff was reduced to KI,093.50. Zill these details are shown on Exh. P5. In this letter, the plaintiff asked the defendant to send his accounts with supporting documents. The plaintiff further said that he would not make any more payments until all the disbursements he had made were reconciled with the actual documented expenditure on materials, transport and professional fees. He then suggested that perhaps an auditor could be engaged for the exercise. The defendant failed to give an account of how he had used up the plaintiff's money. In all, the plaintiff had given to the defendant the sum of K34,114.75 to be spent on the construction of the house at Chileka and K27,005.00 on the house to be built at Migowi, making a total of K61,119.75, and yet by October 1988, the houses were not completed and the defendant could not explain why that was so. In his letters dated 10th October 1988 and 12th October 1988, tendered as Exhs. PS and P9 respectively, the plaintiff expressed great concern. In regard to the Migowi house (Exh. P8), the plaintiff wrote: "Please account for the K27,005.00 spent on the project to-date, and declare the balance so that we may all know where we stand. Please let me have the statement of account as a matter of urgency." No statement of account was supplied. In regard to the Chileka house - Exh. P9, the plaintiff refers to the discussions he had with the defendant, in which it was agreed that the defendant had failed to purchase certain items for the house. It was then agreed that the plaintiff would purchase those materials and that the defendant would refund the money. Such materials and labour came to K5.150.00 - Exh. PIO, and the purchases were duly supported by receipts. Since the defendant had failed to render a statement of account so as to establish what he owed the plaintiff, it was agreed that an independent valuer be engagedu The valuer's report, dated 23rd November 198 8 - Exh. P12, is to the effect that the horse at Migowi was worth only K12.70C.00, while that at Chileka was worth K38,300.00. The valuer found a shortfall of K21,046,25. which was due to the plaintiff. It was agreed between the parties that the valuer's fees would be shared equally. The second witness was the valuer, Mr Davie Chikhadzula. He works w* t i the Malawi Housing Corporation as a Quantity Su’-veyoi . He has a University Degree in Quantity Surveying and he is a member of the Royal Institute of Survey'""' of the United Kingdom. He has a vast experience vf 21 years. It was his evidence that he valued the two houses in question. He examined all the materials used and priced them. Ha then submitted his report Exh. P12. There is an appendix to Exh. P12 which gives a detailed breakdown of his findings. The house at Migowi was worth K12,700.00, while that at Chileka was worth K38,300.00, making a total of K51,000.00. There was then a shortfall of K10.119.75, as the plaintiff had made cash payments of '<61,119.75. In addition to this, the plaintiff bought materials worth K10,9?6.50, bringing the shortfall to K21.046.25. On 23rd November 1988, Mr Chikhadzula raised his bill of costs - Exh. P21, in the sum of KI,749.00, which was duly pai . This witness impressed me. On the evidence before me, I am satisfied that there was an agreement between the parties that the defendant should build two houses for the plaintiff. I am also satisfied that the parties agreed that the plaintiff would remit moneys to the defendant, who would purchase the building materials. On examination of all the cheques and other documents tendered before this Court, I am satisfied that the plaintiff did send to the defendant a total of K61,119.75. The plaintiff spent a further K10,926.50 on direct purchases. It is significant that in all the correspondence that passed between the parties, the defendant does not dispute receiving the money, neither does he dispute the direct purchases. It is quite clear from the evidence that the defendant did not apply all the funds to the project. He diverted some of it. I have already said that I was impressed by the valuer. I am satisfied that the houses were worth K51,G00.00, leaving a shortfall of K10,119.75 on the money the defendant received. Taking into account the direct purchases of K10,926.50, the defendant's liability is increased to K21,046.25. It must not be forgotten that the valuer's fees of KI, 749.00 were to be shared equally. The defendant's share comes to K874.50 and that brings his total indebtedness to the plaintiff to K21,910.75. I, therefore, enter judgement for the plaintiff in the sum of K21,910.75. The defendant will bear the costs of this action. - 5 - PRONOUNCED Blantyre. in open Court this 26th day of May 1994, at