Lanner Exports (PTY) Ltd v City Motors Ltd (Civil Cause 872 of 1994) [1996] MWHCCiv 17 (23 April 1996)

IN THE HIGH cour-rr OF MALAWI PFnNCIAP REGISTRY CIVIL CA U~I= NUMB ER B7:2 OF 1 ~-1~14 Bt~TWEEN : LANNER EXPOr{ ·r~ (P·r Y) L·1·D. ·· ···························· ···· ·· PL /\ INTIFF an d CITY MOTO H~ LTD ........................ ....................... DEF ENDANT CORAM: E. EL TWE/\, REGISTf~AR . Nk ho no, Counsel tor tt1e Pia in tiff Ms iska, Counsel for the Defendant llUL!NG I have heard both parties and read their affidavits. There is no dispute between the partie::; as to the conduct of business betwee n them. It is clear the pro -form a invoices were issued and that the defendant forwarded the forclgn exc~1anoe control approv al and goods were dispatched. What i~, in dispute is the payment of the goods supplied and in terest due on th e outstanding principle. It is conceded in the plaintiffs submis sio n in reply that whether interest wa s payable is an issue. Th is em anates from the way the defendant claim the con1ra ct is said to have been concl uded - what was the offer and what was acc epted: was there a meeting of minds on the interest pay ab le on ov erdue payments? 2/ ..... - 2 - I have examined the parties views and I find that th is is not an open and shut case as the plaintiff would put it. The foreign exchange approval was on 29 March 1992 PCAN 2: but dispatch of goods only started on 27 May 1 ~Jq:! almost two months later and spread to 15 Lluly 1992 PCAN 7A: another three and half months. There was no payment up to ?fl November 19~12: PCAN 9. There is no indication whether at th is that, tlm c was of tl1e essence to the plain tiff, or indeed the defendant who claim late arrival of goods, although this action strictly would lie to the carrier and not the seller: Seated (Proprietary) Ltd. vs. Bhadurkhan (t/a A. H;JL Enterprises) p.444. One would, therefore, be at pains to establish atwho.tpoint in time the parties felt that time was of the essence . The second point is whether this contract is divisible so as to allow the interpretation sought by the defendants. If it is then the defendant have a point, otherwise the plaintiffs argument would be tenable. The last point is the legal effect of tl1e plaintiffs counsel accepting payment from the defendant from which payment they remitted the bank draft through their own bankers as per Ex PCAN YA, YB, PCAN 2, PCA NB and PCA N1 D. The parties have not addressed their minds to this and the legal effect tt1ereof. I would not wish to pre-empt anything but as matters stand in the present case, one would note that what I have before me is only part 3/ ..... - 3 - of the long story. I am inclined not to grant summary judgment therefore. The summons is dismissed with costs. PRONOUNCED ln Chambers this ?]rd day of April, 19~~(3, at Blantyre. ( ' E. - . Twea _REGISTRAH