Chikagwa v Malawi Savings Bank (Civil Cause 1035 of 1996) [2001] MWHC 102 (26 June 2001)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO 1035 OF 1996 BETWEEN: JOHN PETERS CHIKAGWA........ovoviiiiieiiiiei e, PLAINTIFF AND MALAWI SAVINGS BANK......ccoocveviriiriserieneens DEFENDANT CORAM: POTANI, REGISTRAR Mhango, of Counsel for the plaintiff Hara, of Counsel for the defendant RULING the defendant took of Rules of the Supreme Court On May 6, 1999, out summons for summary judgement under Order 86 rule 8 for specific performance of an agreement between the plaintiff and the defendant requiring the piaintiff to create a legal charge over his land Title No. Likhubula 959 to secure payment of a loan from the defendant in the sum of K367,315.87. Subsquently, on May 19, 13 days after the taking the summons for summary judgement, the defendant filed an application for leave to amend defence and counterclaim and also file supplementary list of documents. That application was, however, never pursued. Then on February 2, 2001, the parties appeared before the court to argue the application for summary judgement for specific performance. As counsel for the defendant was about to finish his final address on the application, he made reference to an amended defence and counterclaim as having included a claim for specific performance to compel the plaintiff to execute a legal charoe in favour of the defendant thereby bring the It was then that application within the purview of Order 86 rule 8. it was discovered that there was no such amended defence and counter claim but merely an application for leave to amend which was never prosecuted. Realising that the defence and counterclaim the defendant sought to amend does not have a claim for specific performance and therefore outside the purview of Order 86 of 8, counsel for the defendant made a prayer for the application to amend is heard. Alternatively, counsel asked the court to grant leave amend. an adjournment until the Counsel for plaintiff vehemently objected to the prayers by the defendant principally on the ground that if any of the prayers would be granted that wou'd amount fo allowing the defendant to comply with Order 86 rule 8 through the back door. hearing. application the intended amendment. The issue at stake is therefore whether or not the defendant should be allowed to effect In determining the matter, | wish to first observe that the defendant must have immediately after taking out the for summary judgment for specific performance, realised that its defence and counterclaim did not have a claim for specific performance thereby rendering the application under Order 86 rule incompefence. This is clear from the fact that having taken out the application for summeary judgement on May 6, 1999, 13 days thereafter, before the the defendant filed an application to amend defence and counterclaim. Clearly, therefore, the defendant had intended to cure the apparent defect in the application for summary judgement. Indeed one of the matiers introduced in the proposed amended defence and counterc'aim attzched to the application to amend in paragraph 12 (a) (i) thereof is 2 prayer for specific performance to compel the plaintiff to issue alegal « In my view therefore, it would be oppressive and unjust o deny the plaintiff the opportunity to effect the proposec In any case such amendments would assist the court to ‘air disposal of the case. Furthermore, | do not think the amendn =t a prejudicial effect on the plaintiff which can not be adqu- izl Perhaps, it should also be observer that the amendments the defendant seeks are of such a nature amendments. '=ach a ouc conpensated for with costs. in favour of the plaintiff. have that ouglit to Practice Not be 20/8/9 /et atany stage of the proceedings within the sprit of Itisin the light that the defen summo’ - determin= on the basic already r defendar . ruling ¢ advised - > ap of 79, 1999 in which case | rcgoing observations and remarks that it is ordered liberty to effect the amendments sought in the a M2/ shall proceed to laton for summary judgement for specific performance 2mended defence and counter claim as the parties The recpective arguments on the application. My bear costs arising from the amendment. olication shall be delivered at a date to be a later than 40 days hereof. o i /e _ @ - par Made in ! ¢ay of June 26, 2001 at BLANTYRE.