Freitas v Rocha (Civil Cause 653 of 1991) [1991] MWHC 6 (12 June 1991)

IN THE HIGH ('Ol lRT Of MALAWI PRlNCIP i\ L REGISTRY CIVIL C: /\USF Nn.65'3 OF 1991 BETWEF'. N : 11. S. fRl ~IT/\S AND !\. ROCH/\ ..................................... ' CORAM: UNYOI . O, J. Ch i z um i 1 n , C o u n s e 1 f o ,- Kombczi, Counsel for the Defe ndant Phi ri, Senior Cotirt R0 rorter Mrs. Manondo, Cot1rt J 11terpretE'r t Ii e I' 1 n i n t i f f PLAINTIFF DEFENDANT - Jl 1 DGMl ~NT - By his amended writ :ind ~ tarement of claim endorsed there ( c) ( b) the sum of KSO, 000. 00 being the price of a - the defendant a total sum of · < (,1) the sum of K61,921.31 being on the plaintiff claims ngain s t K123,936.27 made up as follo1t- 1s : the value of building mntcrinls s1 1pplied by the plaintiff to the defendant; plot of ] and sold by the plai 11ti ff to the defendant; c1nd the sum of Kl2,06l.95 heing trnn srort charges for conveying the building mc1t,erinls abo ve - mentioned fn)m Blantyre to Lilongwe and for local trnvel within l i longwC' itself. In . his defence the defi.e!7dant denies owing th ,, plc1intiff the said sum of K123,936:2, or c1t all. plaintiff a total sum nf K38,114.16 mc1cie up as follows: (a) the sum of KJ0,000.00 being hnlan r·e n t1t stc1ndi ng on a loan given by the defendant to the pl.:-1intiff; ( h) the sum of K2,000.00 being interest on the sa id l o nn; expenses incurred by the defe11dant on behalf of the plaintiff o .n the plaintiff's plot nt Arr'a 7 in Lilongwe; and (d) the sum of KlS,000.00 being 10o/. commi •~s ion p ,1yc1b le to the defend.1nt by the plaintiff on sale by the clef e ncinnt of the plaintiff' s said plot at Area 7 in Lilon gwe . The clefencic1nt also clc1ims interest on the sc1id sum of K38,'314.36 .:it such r.1te and for such period as the Court shc111 deem r ropC' 1- . li e in turn cnunterc laims agDinst the the st1m of Kll,064.36 being (c l .... " I h cnrcl evidence frnm 601 h the r,l;iintiff and the -. defendant. None of th em c all •· d nny h, itnesses. H IGH COURT I ________ ! LIBRARY -- 2 t lw I r' 11 de red in evid e nce s i x ,, 1.,i ntiff is the manc1 ging i11 s upr,ort of his claim on this Fu,-th r' 1· , the defendant admits that t o ld I li r Co urt that he h as not paid ,; !i n w t he various items the rl r fendant. The mat ter is I shal l de a l first with the 11l ni ntiff's claim for the sum of K61,921.31; for valu e o f b11ilrli11 g mciterials suppli ed by the plaintiff to the defendc1nt. Th e director of c1 building co nstn, ct i ,, 11 c ompa ny in Bl a nt yre known a s Terrazo and Building Limit 0 d. ll r and the defendant were at all mnteria] times th e h cs t of f1 · i r' 11rls . The defendant resides t n l cl 1'1 0 cour t that at th e request in Lil o ngwe. The plainti f f of the defendant he pr oc ured v nri n 11 s building materi als in Blantyre and sent them to Li 1 n n g""' 1, 1here the defend ant was bu i 1 d i n g a h o us e . The r L:i int i f f delivery notes (Exhibit s P3-PR) aspect. The said deli very n ote s plaintiff says h e suppli ed t o simplifi e d by the def emlci nt' s a r!ri, i r;c; ion that he did indeed receive the items her ein . he h as to pay for them. He for th e said items bec a u se th e r,l :1 int i ff has not produ ced to him proper invoices or ot her rlo c 1 1111r'nt s s howing the pr ices of the i t e ms a nd certified hy a <7u :rnlify s urveyor. defendnnt 's case that h e is r 0 c1cl v soon cis the plaintiff submits s11C'l 1 documents to him. With respect, it ap p ea rs to me pedantic. Whil e a dmitt ed ly t he ,, 1,, intiff has not pr oduced f orm al invoices matchin g the s i x produced t h e U st of th e mat er i.,l ': s upr,lied to the defendant. According to the uncontr ov ert 0 d r' ,• icle n ce the said list , Exhibit Pl, w;:is prep,,red by a qu:=intit v s 11 1·v 0yo r in the employ of the plaintiff's compnny, a] ready - 1ne111 i 11 11erl, and gives the prices of each one or each set of the h11il rli11g mnter ials listed. appear s that th e docum e nt wa s r, r ,' 11: 1red and sent to th e defernl ;int as f a r back c1s 1990. evidence that the def e nrlnnt q 11e1· i ,,1 1 the document or the prices ind i cnted thereon. t h e document and although I am not myself a building contrc1 c l ,, r or merchant I hav e no reason to think that th e pric 0s inflated. As I have already incli ,·:1ted the defendant admits :1 rlmits having used them in having received the it ems and h r r!,, fe ndant admits that he did building his hou se . Further t h r not get the i terns for free; h11t 1•.•.1 s exr,e cted to pay for them. He also ad mits that he has n ot r :1i<i the plaintiff any money in respect of the s:lid building m.:it 1 ·1· i:1 l s. On these facts it is obvious that th e defenckint h n s plaintiff the K6l,921.31 c lai mccl 111Hier this head of claim. I find th erefo re that th e plaintiff fins r,roved his case on this aspect and find the d efe ndant l inl,lr accordingly. t h r' defendant simply wants to be r1 ,, 1 ivery notes he h as however t· r1 pc1y the amount h erein as '~ i r~ 11ificantly, ther e is no :111 n bl i ga tion to pay the i 11 rlicc1ted are unreal or I h nve p eru s 0 d It is the thc1 t It I n ow move t o th e c 1 a i m f o r I ,- ; ins r or tat i on ch a r g e s i n the sum o f K12,061.95. As T hav e al 1· r,,, r!y s hown, after pr ocuring the building mate rials the p] n i n l if f co nveyed them to the defendant in Lilongwe. his truck to transport the i t 0 ms 1 ,1 T.ilongwe. Again, this was not meant to b e a fre e s er vi c 0 : i 11f Ir ed that does not appear to It is <' l 0.,r nll this was p nrt of the be the defendant's cas e . agreement be tween the p 1 n inti r f It i s n n l rlispute d the pl a int iff used ·1111 ! t hE' def end ant. However the - 3 i11 respec t of such local trips plaintiff has di sc over ed that th 0 nmount claimed, namely the includes charges for local K12,061.95 is inflated in that it use o f the t ruck w i th i n Li 1 on r~ "' 0 . 'I' h e p 1 a i n t i f f s a i d t ha t transr n rtation charges for tr ip s 1,• ithin Lilongwe were not envisa g ed. The a mount involv 0 rl is K7,'345.00 (se e Exhibit P8) nnrl the plaintiff has withdrawn his cL1im to this amount. Th is c; 11m must therefore be deducted from the globa l figure of K1 2,0() 1 . tJ'i cind that leaves a balance of K4,7l6.9 5. plaintiff had actually underst :it ,,r l t l1 E' c1mount in respE'ct of the Blantyre-Lilongwe trip s . his stateme nt of claim in thi s theref n re go by t he pl eadi ng s . All the plninti ff h;:is prov ed his r· l n im for transportation charges in th c s a i d s um o f K 4 , 7 1 6 . 9 5 , t he plaintiff's truck D1ade h et we e11 l\l;intyre and Lilongw e. the defendant liable accordin g lv. It becam e c lec1 1· cli11 · ing submissions that the pl :1int iff did not howev er amend in a ll I am satisfied that r 0 g nrd . The court must t lw round t r i p s I find f n 1· Th€' t he p 1 a i n t i f f so 1 cl finally I turn to the p] .1[ 111 i ff ' s claim against the defend :rnt for th e sum of KSQ,r1on . <Hl s<lid to be the pdce of a p 1 o t eviden c e there is no di spu te hct· 1s, 0 0 n the parties that the plaintiff did indeed sell a p icc r- n f defendnnt. What is in co ntr o v cr ~v is the amount agreed upon as the price of the land in que st i rl 11 . The defendant contends that the price was K7,000.00; <lnd not l< 'i Cl,000.00 as conten ded by the plaintiff. t o th 0 cl ,, f 0 n d a n t . Re fer r i n g l <lnd in Lilongw e to the t o the The defe ndc1nt tend E're d i 11 cv id 0 nce a bill of costs, thc1t the legal practitioners Exhibit D1, raised by Messrs. Wi I s on & Morgan who acted as legal pract ition er s for both f h r- plnintiff and the defendant in the m<ltter of th e sale of the s n irl p l ot and the trans fer of title t h ereof . The do cume nt s h 0h,s were advised th e land had be E'11 sn ld for K7,000.00 and they proceeded to le vy stampin g, r 0 gi ,; trntinn and other fe e s and charges based on the s<lid pu r , ·h :1•; 0 rri c e of K7,000.00 . The lie to l e! the Court thc1t they plaintiff gave An expl rinrit ion . mentioned the said fi gure of l'. 7 .(100.00 to the lAwyers in order to save f e es in that h rid they gi v en t h e correct pur chAse price of KS0,000.00 the def enda nt wnulcl h ave paid much mo re in terms of fees and c h arge s b ot h to t lie CovC'r nm e nt and to the lawyers. f he defe nd a nt who suggested all The plriintiff s ai d tha t it wri s this rind that he c1greed in o nl 0 1· tn helr a friend. He sAid that the fact ho we ver st i 11 r 0 rn :1 i nC'cl the pl r,t was KS0,000.00 rind tli:if L· h r, defendant agreed to pc1y the srijd sum. Th e def end,mt , le nied this story. Considering t~e total evidence I am incUn e rl to pr e fer the plaintiff's evidence to that of th e d e fen rlnnr- . The uncontroverted evidence shows that the plaintiff bought this vE' ry piece of land in i s s ituate in Area g, March 1986 for K7,000.00. Th 0 Lilon g1v e, a nd this is A ve ry ·1tt1-Active residential area. inclinr-d to r1gree with the pl iintiff that in all earn e st he would not have sol d th e sn me 1)i0 c e of land some four years later in 1990 a l so at K7 ,000 .< l0 . the pl1,chnse pri ce agr eed het 1,1('c1 1 tli0 prirtie s was KS0,000.00. Tn sho rt I a m satisfied that th<1t the purch ase price of I am lnnd - 4 - The matter does not how ever ,-0 c; t there. It is obvious from t he foregoing th at the r,lai111 i ff participated subsequently i lleg;:il, immoral ;:ind n--rrel1 0 11 s ihle transaction. Once in an this w;:is disclosed th e cou rt is hrn111cl to take notice of it. The rule which is appli c.:ib le to lli 0 mntter is " Ex turri causa non or i tur ;:icti o" or better still "F'. x dolo malo non ori tur a c t i on" me a n i n g res p e c t i v e 1 y base claim' and Indeed it would c1l so be wr on g to nllow the plaintiff on these facts to use the process of the c n1 1rt to get the best of both worlds . All the same it appcars 1 1, me that it would be both unjust and inequitable to let th 0 rl0fE:-ndant have the riece of land [or absolutel y n othin g. I K 7 , 0 0 0 . 0 0 . th c pl ; 1 i 11 t i ff must s u cc e e cl on th i s head of claim only to the ex tent () f K7,000 .00 and I find the defendnnt Uable accordingly. 'no right of ,1cti () 11 ;:irises out of a fraud'. ' no 1- i g h t o f a c t i on a r i s e s from a t hi 11k that he must pay the In the re s u 1 t The forego i n g d i s po s es n f t I 1 r' p I .:i i n t i f f ' s a c t i on a g a i n s t the d 0 fendant . I now turn tn thr-- cl0fenda nt's counterclaim. As earlier indica ted th E' def 0 11clant counterclaims against the plc1intiff first th e sum c)f KI0,000.00 being balance out standing on the sum of KS0,000 .0 £1 ~ hich the plaintiff borrowed from the defendant. Mr . Ch i z um i 1 a plaintiff, admitte d owing th e Kl(J,()()0.00. that the defendant ha s provecl hi s c ounterclai m on this point and find the plaintiff liablc ac cnnHngly. t he I find therefore Just be fore thr h ea ring started t In t h i s c 1 i en t , t he Cc ) 1 tr t i n form e cl The defendant 's next cL1im ic; for the sum of K2,000.00 I see it, being interest on the K10, 00 (),00 _i11 s t mentioned. As is fraught with problems. the d 0 fendantf's case on thi s poi 1d Pleadingswise, the de fenda nt simpl v stnted "Int erest on loan - K2,000.00". Such type of pl cn di11 ,(; o ff e nds the provisions of 0.18/18/10 of the Rul es of t he S11pr 0 me Court which require that on a c laim for interest it m11st h 0 s pe c ifically plead ed whether such interest is claimed undr'r st : 1t 11tc or contract or othen,; ise. The rule goes on to s. 1v th ,1t where the cl :dm is under n contract, the c ontrac · tu.:il 10rm relied on must also be plead e d specificc1ll y, ,1s s ho iild tli 0 r;:ite at which and the period for which it is b e ing c lc=ti 1110d . And referring to the evidence in the rresent case. th r' cross-examinc1tion that the qursti () ll of interest was n either discussed nor c1gre ed h0tween him s 0 1 f nnd the plaintiff. The claim here is therefore o ne h' hicli h :1s c ome out of the blue, so to say. The defendant was n nt al,! 0 E.'ve n to tell the period for ~hich the claim is mad e. On the s0 f.:icts I am inclined to think that the claim must fnil a nd it i s rlismissed. rl C' f0ndant conceded under I turn now to th e defend :rnt ' s c ounterclai m for the sum of Kll,064.36. The defencL1nt's c as 0 n 11 this aspect was that he had occa~;jon at on e ti me to "loo!<: of land at Area 7 in Lil ongw0. :1ftE'r" the plaintiff's piece 11 ,, s nid that in the process he I 11 :ll \v o r km en t c 1 , · I 1' ,1 r t he p l a c e a n d h u i 1 d a t Iii ,_ h e:i cl as the Gov er nm ent li1-1~ n 1 r'ned to confisc a te th e plot I I w:is the defendctnt ' s the plot was bein g spent I h e a mo unt claimed unde 1- au th orit i es in Lilongw e had t unles s it was at once dev e lop r' rl . eviden 1 ·e thc1t in order to sho ,,, de v e 1 < 111 e d h e em p 1 o ye d shack. He also employee! c1 wat ,· !11 11: 111 nncl had water suprly conne c ted to th e premi ses . Tli r' severnl d ocu ments such ns wat 0 r- D2-D8) in sup port of hi ~; c lai 111 n11 t he d r~ r-e n cl a n t to cl o r " '. I )(, , H l i t u re he re i n w i t ho u t prior ng r Pemc nt with the plai1 1t i ff, nor did he consult the plai nl i ff. Ther e is ;il ~;o no r'v i cl 1 ' 1wc to show that th e plaintiff knew c1hout whnt was appro \•· il, tc1c it or other w ise, to i i . Much as I would symph :1 1 hi se with the d e f e ndan t any b .-1•;is upon which th e clai111 1i ,, ,1 , c,1 11 succeed. have nn other option ht1t to cl i s mi •:•: it, which I do. rl 0 fr, ncli1nt tendered in evidence ·111 11 c i ty rates bills (Exhibits t liis point. Signifi c;=mtly, ;i h e ;i d s ;i i d uncle· 1- c r o s ,; - c"' 1 1 JJ i 11 ,1 t i on t h a t h e we n t l1n1'! "' lling c1nd that he gc1ve 1-.,!1 ct t h c d i cl an cl I therefore 1111 n eve rtheless unc1hl e to find i n c ur t Ii 0 c1 n y l There is th e n the penultirn.11,, c· lnim for the sum of i n tJi ,, Th e t o l cl I hnv e t h e Co u r 1- th a t ju st describ e d t c1 t lie plaintiff's plot I have ,1 f t ,-, 1- c ;i r r y i n g out the m i nor jn li, h e nce the claim h ere. i11cleecl sold. He denies ,, receding paragraph , he was t lip plot up on sale and that K15,0( lll .00 . Th e claim relatE" : just mr' nt ione d, viz the plot .it /\ 1-0 ,-1 7 in Lilongwe. cl e fen< 1-i n t works reque<~t-ed by the plaintiff to pul he obliged and sold it. The rlcfc11 cl:int says thc1t he is entitled to 10~1 commission for cl()ing this The pl ·iintif[ admits th e plot 111;1, ; howevr' 1- h c1vi ng asked th e defe 11rlc111t denie s it was th e defencl;int wl1n c,1 1H lt1 ct0 d the sale. The plah1t i ff sc1ys that h e h n ndlc <I here i11 Rl a ntyre. Of the two rn11 i r' s T thought thc1t jt WclS the plaint i f f who c;:ime out firm i 11 h i• ; r' v i cl e nce on this pnrt which makes rnE' inclined to pr efe r hi s r,• i rlc n ce to that of the defernl-int. And e ven c1 s~:; uming t-r1'11 the dc,enclant t o sell the plot, 1 IH' d efe ndant, it is to be noted, was un;i b 1 e to t c 1 l the ('.0111 t h ow he arrived c1 t of lO 'X. Tnc.iE'ed the d e f c nclant •:; ,1irl there ,,, ,1s no c1greement he twee n hi 111 the pl-iintiff to pay him 10% <'r, m1 n i • •: i on or any commission for r11 .-1t I 0 r w,1s not even dis cussed. that n1· 1tter. He said thnt th 1· j11 rlgment be no b as i s up on On th c•:; e facts there would in my which r h e cL1 im on thi s pnrt i n c ross-examination th;=it :rnd the plaintiff r cqui ring to se ll it for him. He also t h e plclintiff did in struct t rnns;iction hims e lf right It is dism issed. the rate •; 11 ccce d. , 1 1111<1 tti ,, '!h is lcnvcs out the c lai 111 lvhich interest is being the p1 1'vinus in sta nce the bas i ~ 111 '<1 11 claim er ! on this part wns not , , 1e :1, J,,r1 h y the defendc1nt c1nd it has rn , t given .1s I dealt with the earl ic1- must nlso fail c1nd it is dismi c; sr'rl . in c1ny wny becn s ubst :111t i .- 11 1•d. For the rec1son s f <, 1 l11rthcr interest. T.ike in r· lnim for interest this claim I have 'l ,1 recclpitulate, T hnve sum or K61,921.31 bein g v,1lue r)f plaintiff sup pli E' d to the def ,, 1ic l,11 11: K4,71f1. 95 being transpnrtnticrn c l111 i•,es: nnd (c) in th e sum of l1 11i !cling materials the I-cw the plaintiff (;:i) in the (h) in the sum o f l ,1u 11rl - 6 - K7,OOO . O O be ing pur c h a se pri ce of a pl o t the plaintif f sold t o the de fen dan t. Th i s giv e s a tota l s um of K73,638.26. And I have fo un d f or th e d e f e nd a nt i n t h e sum of KlO,OOO. OO b eing balance on a lo a n t h e defend a n t gave t o the plaintiff. This reduces the sum du e fr om the defe n da nt to the plaintif f to K63,63 8. 26 a nd I e nt e r judgm e n t for th e plaintiff for this s um . Ea ch pa rty wi l l h a v e co sts o n t hose matters he h as succee de d. PRO NOU NCED in o p e n Cour t t h is 12 th day of June, 1991 at Blanty r e .