Kassam v SturdyHawk International (Civil Cause 163 of 1993) [1994] MWHCCiv 21 (5 August 1994)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO.163 OF 19 93 BETWEEN: MAHOMED HANIF KASSAM . . . . . . . . . . . . . . . . . APPLICANT/DEFENDANT AND STURDYHAWK INTERNATIONAL ...... . ..... PLAINTIFF/RESPONDENT CORAM: CHATSIKA , J. Msisha , Counse l for the Applicant/Defendant Mbendera , Cou ns e l for the Respondent/~laintiff Ms Mkandawire , Court Clerk RULING This is an app lication made by the Defendant for an order that the arbitratio n a war d h erei n which was mad e by the arbitrator be either set aside or remit t ed to the arbitrator for further consideration . The applicant also applies for an enlargement of the period for making the application. By an agreement entered into in writing on the 10th October 1990, the plai n tiff agreed to build two houses for the defendant It was alleged by the plaintiff at a to t al cost of K442 ,000.00. that the cost of K442 , 000.00 was on the 25th November 1991 varied to K552 ,000.00. defendant awarded the contract relating to the pr e paration of the land on which the houses were to be build to an earthwork contractor. complet i on period would be 40 weeks from the 10 th October 1990. Later the completion time wa s a lter ed to November 1991. It was initial.ly expressly agreed that the It wa s further alleged that the It was al l eged by the pla int iff that as the defendant contracted an earthworks contractor to prepare the site for construction of the houses it was impliedly understood by both parties that the preparation of the site would be completed in good time to e n able t h e plaintiff to commence the building work - 2 - It turned and complete the same within the stipulated period. out, however, according to the plaintiff, that th e defendant failed to hand over the site to the plaintiff in order to commence the construction of the buildings in good time and only did so on the 10th October 1990 when the plaintiff only managed to start the construction of House No . land that for the same reason construction of work on House No.2 only commenced 18 weeks after the 16th October 1991. It was further contended by the plaintiff that when the construction work commenced, siting problems were encount e red arising from the presence of a sewer line underground which made it necessary for the house to be re-sited and that this unexpected impediment caused delay in the construction work. The pJ.aintiff stated that as a result of the foregoing problems he suffered loss to the extent of K87,793.00. The contractor claimed this amount including the cost of the proceedings from the defendant . In his defence the defendant admitted that he entered into the said agreement on the 10th October 1990 and that it was mutually understood by both parties that agreement was entered into wi thout further qualificalions apart from the express terms of th2 agreement. To this end , it was the defendant's case that the contract was entered into on the basis of the site as it stood at the time of entering into the agreement. He states that the site was ready and J.evel at the time of signing the agreement, and in any event the defendant casts the onus on the plaintiff to have proved that it was so before entering into the agreement. The defendant denies that the contract price was varied from K442,000.00 to K552 , 000.00 . He states that the plaintiff met with some difficuJ.ties in the course of carrying out the construction work a n d that discussions were commenced aimed at altering some ter ms of the contract but denies that such discussions were concluded and that the contract price was changed to K552,000 . 00. The defendant further contended that since the plaintiff did not continue with the construction work the question of discussing a variation of the contract cost would not arise. The defendant conceded that he had asked for a variation to House No.l but states that such variation did not result in the period of completion being extended and that, in any event, the plaintiff did not seek an extention of the completion period on account of the variatio n s . With regard to the presence of the iewer line under the ground on which House No.l was to be con§it.ructed, it was the defendant's defence that it •was the resp;Jsibility of the plaintiff before entering into the contract to ascertain the state of the site and satisfy himself that it was suitable for the construction work to start before signing the agreement. He contends that as there was no term in the contract as to the state of the subsoil or thi n gs i n it, the plaintiff ought to be deemed to have accepted to find the site in the condition in - 3 - which i t was and th at any of t he s ubs o il o r th i n gs found i n it after t h e co nt r a c t h ad b ee n sign e d wou]d no t constitute a valid gro un d f or breach o f t he co nt r act by th e pl a int iff . The defendant denie d t h e a ]l gatio n s made by the plaintiff Th e d efe n dant also de n ied that he (the d efenda n t) fa i l e d to h a n d over t h e site to the p ] aintiff by t h e 10th Oc tob er 1 9 9 0 . an allegation made by the plai ntiff t h a t h e failed in terms of t h e co n tract to ma k e p ro mp t payments and he accordingly de n ied t h at t h e f a ilu re to ma k e p rompt payments , wh ich is denied , ca u se d J oss o f p rof i ts t o asserted that a l l pa yme n ts f o r wit h the ter ms of t h e co n tra ct a nd th e r e f o r e d e n ied that t h e ,plaintiff suffered l oss of pr o f its . He fur t h er asserted t h at if t h e plaintiff suffered a ny l os s du e to i n creases in prices of materials, t h is was due t o h is fai lu re to f inish the work within the contract period . t h e wor k we r e made in acco r dance t h e plaintiff . He ( t h e defendant) Under the arbitratio n c l a u se co n t a i n ed in Clause 10 of the t h e part i es , agreement betwee n arbitrator. Accordi n g to th e ar b itrat i o n c l a u se , the arbitrator was to be appoi n te d by th e Ch a i r ma n fo r th e ti me being of t h e Association o f Maste r Bu ild e r s in Mal a wi a nd i n accorda n ce with the provisions of t h e Ar b i tra t i o n Ac t, 19 67 Mr . D. V . Self was accord in g l y appoi n te d arbitrator to arbitrate 1n the dispute bet wee n t h e part i es . t h e matte r was referred to an (Cap . 6 : 03). the 24th October 1993 , It is not c l ear wh e n Mr . Se l f was a p poi n ted arbitrator . On t h e arbitrator made the following award: - " AWARD IN THE MATTER OF THE ARBITRATION ACT ARBITRATION BETWE EN STURDYHAWK INTERNATIONAL LIMITED OF P . O . BOX 57 2 , BLANTYRE , MALAWI AND MAHOMED HANIF KAS SAM OF P . O. BOX 50 71 , LIMBE, MAL AWI. (CAP 6 : 03) AND AN WHEREAS , IN P URSUANCE OF AN AG REEMENT IN WRI TING DATED 10TH OCTOBER 199 0, MADE BETWEEN STURDHAWK INTER NATIONAL LIM I TED AND MAHOME D HANIF KAS S AM AND CONDITIO NS THEREIN . MASTER BUILDER S IN MALAWI IIAS REFERRED TO ME DAVID SELF THE MAT TE RS IN DIFFER ENCE BETWEEN THEM CONCER NI NG A BUILDI NG CO NTRACT . THE CHAIRMAN OF THE AS SOCIATION OF I N ACCOR DANCE WITH THE NOW I, THE SAID DAV I D SELF HAV I NG DUL Y HEARD THE PARTIES AND CONSI DERED THE MATTERS S UBM I TTE D TO ME, DO HEREBY MAKE AND AW AR D AS FOLLOW S : - I AWARD - (i) TH AT MAHOMED HANIF KASSAM IS TO PAY STURDYHAWK I NTERNAT I ONAL LIMITED THE SUM OF K41 , 258 . 00 I N F ULL AND FINAL SETTLEMENT OF THE SAID DI FFERENCES REFERRED TO IN THESE PROCEEDINGS - 4 - ( i i ) THAT MAHOMED HANIF KASSAM SHALL BEAR HIS OWN COSTS OF ATTENDING THE ARBITRATION AND SHALL PAY TO STURDYHAWK INTERN ATIONAL L IMITED ITS LEGAL COSTS OF ATTENDING THE ARBITRATION AND SHALL PAY MY ARBITRATION FEE OF K6 , 300.00 . Si gned Signa t u re Arbitra tor Dated th e 24th August 1 993 " On t h e 26t h October 1993 , two d ays after the award had be e n made the d e fendant , through his lawyers , wrote to the arbitrator asking for t he reasons or grounds upon which the award was made . The arbitrator replied the l et t e r fro m the defendant's lawyers on t h e 1st September 199 3 . t h is Court but it wouJd appea r from t h e ton e of subsequent correspondence between the d e f e ndant ' s arbitrator that the arbit r ator r e fused to giv e any reaso ns on which the a ward was made. On defendant's lawyers wrote the fol l owing l etter to the arbitrat or by way of a repJy : Th at l etter was not exhibited to t h e 20th Septe mb er 1993 the lawye rs a nd the "D ear Sir , RE: STURDYHAWK I NTERNATIONAL v . M. H . KASSAM We tha nk you for yo u r letter of Sept e mb er 1, 1993 . Your a ward did n ot set out the reasons by which you came to the c o nclusi o n you rea ch ed . A litigant is entitle d know t h e factors which we nt into your de cision i n Oeder to deter min e t h e validity of t h e d ecisio n of an arbitrator or a co u rt . You h ave n o t e ven set out h o w you arrive d at the figure you awa rd e d as damag es . Your award does no t explai n what happen ed to th e Owner ' s counterclaim . t o If you stat e your reaso n s in fuJl , this may put t he e n tire matter to rest . to J.odge an app l icat i on for review to the High Court. If yo u do n ot , you will compel the owner In our opinion th e court i s t h e reas ons for y o ur award. l i k e ly to dir ect t h at you give We awai t yo u r advices . Yours faithfu lly , Signed NYIRENDA & MSISHA cc : M/s Savja ni & Co P . O . Bo x S L 34 LI MBE " On t h e 6th Octo b er 1 9 93 the arb i tr a tor wr ot e Jetter in re p ly to t he l etter fr o m th e d e fen d an t t h e 2 0 t h Septe mber 1993: t h e fol l owi n g ' s lawye r s o f - 5 - " Dear Sir , ARBITRATION AWARD MR. M. H . KASS AM STURD Y HAWK INTERNATIO NAL / I confirm rece ipt o f y o u r (ref MRM/ 1 53 1 /e n) o n co n te n ts . J et t e r dat e d 20th Septe mb er 1 993 t h e a b ove ma tt er and h ave n ote d its Please be advis ed t ha t a s s t a ted in my a wa rd , a decis i o n on in fact co n s id e r aJJ t h e ma t te rs submi tte d to me. t hi s d is put e I did h ear the parties a n d did in comin g to Thercfor:-e _i t myself _i s req ui re d a n d to rest . i s my o p_ini o n t h a t n o fur t h er expla n at i o n from tr:- u st t h at th _i s n o w p u ts t h e matter Yo u rs fa i t h f ully , S_ignccl D. V. Se l f For an d o n b e h a lf o f HANSCO MB PAR TNE RS Copy : M/ S Savja n i & Co mp a ny P . O . Bo x 51 3 4 Lim be On the 14th Octo b er 199 3 , th e pla i n t iff o b tained a n o rd er for th e enforc eme nt o f th e a wa rd. On the 19th Octo b e r 1 99 3 , th e d e fendant ob tained a n o rd er t h e e nforc e me nt o rd er o n c o nd i ti on that t h e for a stay o f Sheriff ' s fees we r e paid ; n o tice of a pp ea l a ga i n st the said award was f il ed wi thin 7 d a ys and th e ord e r served on t h e pl a intiff . On the 25th October 1 9 9 3, t h e defe n da n t a war d . f il e d a Not i ce of Mo tion t o s et asi d e or remi t f o r the sta y was the f ace of i t Mr . Ms i s h a for t h e appli ca nt (d e fendan t ) argued t ha t t h e in t h at t h e arbi t rator award was bad i n la w o n th e exceeded his j u ri sd i ct i on in a wa r d i ng co s ts to t h e resp onde n t (plaintiff ) wh e n t h e c o n tract s t i pul ate d to the co n t r a c t we r e Mr . Msisha also con t e n de d his decisio n th e ar bit ra tor s h o we d bias ag ai n s t ( defendant ) a n d s h o we d e ight e x a mp l e s as indi cation of b ias a g ai n st t h e a ppl ica nt . As alr e ady stat e d a t th e begi nning of t h e r u li n g , ti me in whic h to fil e t ha t b y failing to gi ve reaso n s for the ap pl icant to b e bor n e e qu a lly by t h e p arties . t h e ap pl i c a nt als o appli e d for a n e nl arge me n t of t h e t h a t costs and expenses t he app J. ic a tion. Order 75, rule 5 of the Rules of the Supreme Court provides - - In considering his application for an enlargement of that an application to set aside an arbitration award, or to remit the award or for the court to direct that the arbitrator should give reasons for the award must be made, and the summons or notice must be served within 21 days after the award has been made and published to the parties. The award in this case was made on the 24th August 1993 and must be deemed to have been published to the parties, and certainly to the applicant (defendant) by the 26th August 1993 since it was on that date, the 26th August 1993, that he wrote to the arbitrator asking for reasons for his decision. The 21 days required for making the application would appear to have expired on the 19th September 1993. No application had been made by that date. The arbitrator had indicated his refusal to give reasons by the 1st September 1993. The applicant's letter of the 20th September 1990 was written while the period for appeal had already expired. time to appeal I must consider the application in the same manner as I would consider an application for setting aside a judgement. An application for an enlargement of time to set aside judgement requires that, for the application to succeed, good and substantial reasons must be given. For the enlargement of time, the appl.icant relies on the affidavit of Mahomed Hanif Kassam which simply states that he was not available at the time the request for reasons was made. The deponent of ~ the affidavit does not state from what date he was not available and from what date he began to be available. refuse an application for an enlargement of time for this reason ·which, in my view, is not a cogent reason. taken into consideration the fact that one of the factors which influence a court to refuse or grant an application for enlargement of time is the substance of the appeal proper. If the court considers that there are matters of legal importance in the appeal proper , which, if not considered by the appeal court would result in a denial of justice to the appellant, it may exercise its discretion to enlarge the time notwithstanding the fact that the real grounds for enlargement of time are not cogent or substantial. and grant the application to enlarge the time for filing the application in order to hear and cons i der the substantive motion which I consider to contain matters of legal importance. I shall therefore exercise my discretion In a normal applicat ~on I would I have, however, There are two main grounds in support of the application to set aside or remit the award. The first ground is that the arbitrator gave himself costs of the arbitration and also awarded costs to the respondent when the agreement provided that costs shall be borne by both parties equally. The second ground is that the arbitrator did not give reasons for the award. It is observed that there was no direct referral placed by the parties before the arbitrator. agreed that the referral shall include the agreement which was entered into between the parties; the statement of claim which was made by the respondent (plaintiff), the defence which was entered by the appJ.icant (defendant); the reply to the defence It appears that both parties - 7 - and counterclaim and the repJ.y to the countercJ.aim and the further and better particulars supplied by the respondent (plaintiff) as per the request made by the applicant (defendant) in their letter of the 3rd December 1992. observed further that on the 1st February 1993, apparentJ.y for the purpose of strengthening the reference, the arbitrator wrote two J.etters to each of the parties asking for certain confirmation and particulars of certain facts which appeared in the documents which were already in his possession. The answers from the parties to his letters of the 1st February 1993 and the documents which have already been mentioned above together constituted a bunch of his reference. information contained in these documents that the arbitrator made the award. It was from the It is however • It will be observed from the amended statement of cJaim that the plaintjff (respondent in this matter) claimed a total sum of K87,793.00 from the defendant (applicant in this matter) after denying the various claims made by the plaintiff, the defendant made a counterclaim. that the matter was referred to an arbitrator. Before the arbitrator considered the plaintiff's claim, the defence and counterclaim he asked for some information from both parties. It was at this stage of the case From the plaintiff the arbitrator asked for documentation to substantiate the claims in the following points:- 1. Variation of contract price to K552,000.00. 2. Which contractor carried out the site works at Plot No. CC 1005. 3. Confirmation on the delay in handing over part of the site where House 2 was to be sited. 4. Confirmation of delay due to resiting of House 1 due to the presence of a sewer line. 5. Variation agreed on House No.l which extended tl1e contract period. 6. Confirmation of erratic and delayed payment by the client. 7. Substantiation of any actual loss and expense incttrred by yourselves. 8. Confirmation that the contract was extended to 31st January 1992 (House 1) and to 30th April 1992 (House 2). 9. Confirmation of the points stated under Clause 9 of your Defence to Counterclaim. 10. A breakdown of the original tender sum. - () () - From the defendant, the arb .i trator asked for the following information: l. That the si t.c was J cvcl and ready for construction works to commence on October 10 1990 and which contractor carrjed out these works. 2. What were the variatJons requested by your Client to House No.l. . , 3. Confirmation of when your C]ient made payment to the contractor and what were the payment reguiremerits according to the terms of the contract . 4. Confirmation that the plasterwork was of poor quality. 5. A copy of F itz simons Northcraft Associat es last valued assessment of compJ.cted works. 6. A copy of drawings Nos. 90-02-01 to 5. It is clear to me that the arbitrator considered the matters contained in the amended statement of claim and the matters contained in the defence and counterclaim and also the matters in the reply to the defence and counterclaim. He also considered the matters in the further and better particulars supplied by the pJaintiff at the request of the defendant. addition to these matters he considered the answers given by the parties to the information which he requested. After considering al] these matters he made his award. the plaintiff ' s original claim of K87,793.00 was reduced to K41,258.00. In the award, In It should further be observed that unless the agreement of reference prescribes in what form the award is to be made, it may be made in such form as the arbitrator thinks fit. (See Halsbury's Laws of England , 4th Edition, Vol.2 at Para.609T:- With regard to the matters which the arbitrator had to decide, the nature of the reference shows that he had to decide only two matters, the plaintiff ' s statement of claim on one hand and the defence and counterclaim on the other. The matters were capable of having only one arithmetical answer. By reducing the plaintiff's claim from KBB,00C.00 to only K41,000.00 it becomes obvious that the arbitrator found certain matters in favour of the defendant and those matters reduced the plaintiff's claim. The position of an arbitrator is one of complete trust. The parties put their trust in him an d must be expected to accept his decision unless there is someth~ng in the decision which is obviously wrong. In David Taylor Ltd. v. Barnett (1953) 2 A. E. R. 843, Singleton L. J. quoted with approvaJ. a passage from the judgement of WJlliams J. in Hodgkinson v. Fernie (11) 3 C. B. N. S. 202 which states:- - ') - "The law has for many years been sett l ed, and remains so at this day, that where a cause or matters in difference are referred to an arbitrator, whether a lawyer or a is constituted the sole and final questions both of law and fact". King and Duveen and Others (1913) layman, he judge of all (See also 2 K. B. 32) The applicant has not pointed out what particular matter the arbitrator failed to decide. All what he asks for are reasons for his decision. As already stated above, the ' arbitrator's award does not require to be made in a prescribed He had to decide whether, on the facts given to him, the fo~~- cl~\m by the plaintiff could be justified. He made his award after ' considering both the defence and the counterclaim. fa~t , the form of-his award was as near as could possibly be, the : form . which is provided in the appendix to the Arbitration Act In (Cap.6:03) at page 18. decid~ matters that were in dispute and that he misconducted himself. It cannot be said that he failed to The next point on which the applicant relies in his contention that the arbitrator misconducted himself is that the arbitrator awarded costs to the plaintiff when the contract stipulated that costs and expenses relating to the contract shall be borne equally by both parties. The general rule with regard to costs is that a successful r party is, prima facie, entitled to his costs. cases where the conduct of the successful party made it impossible for the parties to agree on a point that was so obvious and therefore necessitated the appointment of an arbitrator that costs may be awarded to the losing party. S~eaton Hanscomb & Co. v. Sasson I. Setting & Son (1953) 1 W. L. R. 1481: It is only in In "An arbitrator made an award in favour of buyers in the form of a special case setting out questions of Jaw for the opinion of the court and in respect of costs he made an award to the effect that "however the court answers the question each party shall bear their own costs of the arbitration and the sellers shall bear the costs of this my award". The court decided the question of law which was conclusive in favour of the sellers. It was held that the arbitrator's discretion as to costs must be exercised judicially . . . . . . . . Since a successful party was prima facie entitled to his costs the phraseology of the award in the present case showed that the arbitrator had not applied his mind judicially to the question of costs because it showed that he had excluded from - l O - his mind th e re suJ t or tl 1c cc1se v, hi c: h was o n e of t h e most impo r tant e l e me nts wh jc:h ought t o af fect h i s disc ret io n" . I n Le wi s v . Haverrord wes t Rural Di s t r i ct Co un ci J. ( 1 953 ) l W. L. R. 186 : l a nd for t he pl ai nt i ff ' s Th e q u estion of c o mp e n sat ion was re f erred "The defe n dants t:'" nt e r e d t h e purpose of co n str u c t i ng a se we r. Th e y did not pay any compe n sa t j o n to th e pl a int i f f as t h ey ought to do. to a n ar bit rator in p u rs ua n c e o f th e pr o visi o n s of section 278 of t h e P u b J. i c Hea l t h Act , 1 936 . The arbitrato r a wa rd ed comp e n s a ti on t o th e p l a in tiff and with r egard t o costs , th e arb i trator a warded th at eac h pa rt y s h o ul d pc1y it s o wn costs i n cide n ta l to t h e a rbi trat i o n . The plc1 i nl iff moved f o r a n or d er t h at t h e award l o co sts b e sE: L aside and 1 n so far c1s t h at Lhe Co un ci J s h o uJd pay th e a ppl ic:a nt ' s costs . i t. r C' l a l: e d It was h e l d th at 1n t h e a b se nc e o f s p ec i a J circu mst an ces - t h e s u ccess ful p ar ty to a n ar b itration is entitle d to rece i. ve its c rn-,ts. At page 1 4 8 7 , ~or d Go d d a r _? __ ~-~ . h ad th i s to say : - " In t h e prese n t case th e ar bi t r a t or wh en as k ed t hos e was t ha t t h is o r d er a s to c ost s an s were d, " I ha d f o r a warding th a t e ach party s h oul d I had wh y he mad e severa l reaso n s b ear it s own c:osts , a nd o ne o f n o evide nc: e that du r ing t h e J.on g ti me b et wee n the event a nd t h e date o[ t h e a rb itrat i o n a ny serious effort h a d bee n ma d e by e ith e r p a r t y to set tl e t h e T h e qu estio n had t o b e sett l e d at so me qu estio n '' . time . Why, take t h ere f o r e , steps to sett l e or to ma k e a te nder are t h ey to be i n a be tt er pos it. i o n th a n have bee n ? app l ica nt , h av in g e n tit J.e d stat u te g :i ves him t h e righ t the Cou n ci J h ad a pp are n t ly ma d e n o e f for t . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . t h c1t (t.h e r c i :.:; zrny) th erefore , n ot awar di ng t h e s u ccess ful a p p l i c a nt h is c osts ". I ca nn ot fi n d c-; p 0 ci ,1l c i rc um sta n ces , a n d ,7 1 b.it.r- ato 1~ was wro ng 1n Th ey m0de n o ef f ort to sett l e and the 11 0 w br o ugh t. p ro c: ec d_in gs is i f th e Co uncil di.d no t t h e y migh t ot h er wise t o re c e i ve a nd wh ich c: o mp c n sat i o n wh ic h t o recover t h e t hink l.h r to pay. t h e I These c:ases are a u t h orit ie s Ear t h e propos i tion t h at except wh ere specia l circ u ms t ances e xi st , u s u ccessf ul party is e nt it l e d to hi s c: ost s . - 11 - Halsbury ' s Laws of England, 4th Edition Vol.2 Para.606 deals with agreements between parties on question of costs. states:- It "Agreement between the p arties: Generally speaking the parties may make suc h agreement with regard to the costs of the arbitration as they think fit. But any provision in the arbitration agreement, except where the agreement is to refer a dispute which has already a r i sen , t. o -Eh e e f f e c t that the part i e s or - any party to-1t shc1ll. pay their or his own costs of the refcre:ncc or aw,1 1~d or a n y part thereof in any event is void, and the agreement 1s to be read as if the provision were not contained i n it " . ,,--._._ It is clear that the above provision is intended to ensure that the genera]. principle that a successful party is entitled to his costs is maintained. It t h erefore annuls any provision that would have a contrary effect. I now come back to the provision contained in Clause 11 of the Contract which reads "Th<:: c:osts and expenses relating to this contract shall be borne by both parties equally''. Section 19(1) of the Arbitration Act ( Cap . 6 :0 3) gives a discretion to the arbitrator to award cosis. Section 19(3) is similar to th e above quotation from !Talsbury's Laws of England. It makes void any provision to the effect t h at any party in any event shall pay their or his own c:osts . ensure that the general pri n ciple that a suc:cessful party shall be entitled to his costs is mainta ined . agreement to which my atte n tion ha s been drawn was intended to have that effect, then it is void and the agreement must be read as if the provision was not there. Th is provision is intended to If the provision in the I therefore do not fin d any i rregularity when the arbitrator exercised his discretion in awarding costs to the respondent and in awarding his own costs against the applicant. The motion to remit or set aside the award fails and costs of this motion are awarded to t h e respondent . MADE in Chambers this 5th day of August, 1994 at Blantyre. . i ;' , ' , t "'( {t,.-..,,~·~t ll 4._ L. A. Chatsik.a J UDGE