Leopard Development Ltd v Gondwe (Civil Cause 750 of 1993) [1994] MWHCCiv 19 (4 January 1994)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NUMBER 750 OF 1993 BETWEEN: LEOPARD DEVELOPMENT LTD S. C. GONDWE AND CORAM: D F MWAUNGULU, REGISTRAR Chiligo, Counsel for the Plaintiff Mwafulirwa, Coun sel for the Defendant Mk andawire (Miss), Interpreter ORDER PLAINTIFF DEFENDANT On t he 30th of December, 1993 I dismissed the defendant 's application to set asi de a judgment in default of defe nce. The judgment was obtained on th e 18th of September, 1993. The plaintiff took out th e wri t on the 8t h of J une , 1993. Th e defendant lodged his notice of intention to defend on 18th June , 1993. The st atement of claim was served wit h the writ. The defe ndant was in defaul t of defence. The plaintiff obtained judgment in defa ul t of defence which the defendant, by an applicati on of 6th December, 199 3, wants se t aside. Th e f act s, gathered from the statement of claim and the affi davit in support of the applicat i on to set aside judgment, are as fol lows. The de fe ndant was operating a filling station at Kanjedza. He wa s dealing in the pl ai ntiff's petroleum products. 1993, t he plaintiff supplied to the defendant petroleum products amounti ng to K369, 538.29. pa id K243 ,156.66. There was a rebate of K11 ,767.60. The def endant is theref ore , indebted to the plaintiff to the sum of K114 ,728. 34. The act ion i s in respect of this sum. As we have seen, the plaintiff obta i ned judg men t in respect of this sum. In between November 1992 and March, 1993, th e defendant In between October , 1992 and March, Th e def end ant wan ts the judgment set aside on the basi s of an affidavit sworn by his legal practitioner, Mr Mwafulirwa. ~~,e graveman of the affida vit is a purported agreement between the pl gihtiff and the defendant suspen ding the payment of the sum due on condition tha t the defendant pay t he debt by instalments while the plaintiff continues t o sup ply petroleum products t o the defendant on cash basis. It is depone d that the defe ndant had made t his offer verbally. It was confirmed by correspondence which is de po ned t o in the affid avit. The correspondence i s not exhib ited. not think this is consequential because the source of t he deponents be lief , as required by order 41, rule 5 (2), has been di sclo sed. even t i t i s unnecessary to belabour the point on the vi ew I have taken of t he ev idence before me. In any I do 2/ .... - 2 - This i s an applica tion to set aside a regular judgment. Suc h judgment, exc ept on very good cause, may be set aside if the r e i s an affidav i t of mer i t - an affidav i t di sc losing a def ence - or at any rate, a matter f i t In thi s ca se the indebtaln ess is conceded . The defence put for trial . for wa rd i s th e agre emen t mentioned earlie r . The quest i on fo r determina tion is i f this agreement ab solves the dej end ant's liabil ity t o the plai nt iff. On the conceded fact s, if it does ... t he matter should go to t r ial. to go for t r i a l. If it does not, and I am afrai d, it does no t , the re is no issue The case here rai ses an old principl e of t he law of co ntract . Th e way I unde r stan d Mr Mwaf ul i rwa 's argument, Mr Mwafulirwa app ears f or the defe ndant , t he purpo rt ed agreemen t bi nd s the pla i ntiff on th e ear l ier debt . Th e general prin c iple, coun t en anced by nobi l it ies before him , was better ex pressed by Lord Justice Hanworth , M. R. i n Van berger s vs. St Edmu nds Pr opertie s Ltd (1933) 2 K. B. 223 , 231: 11 It i s a we l l established prin c ip le that a promise t o pay a su m whi ch th e debt or is already bo und by law to pay to the promisee doe s not afford any consi der ati on to sup port the contract." The stateme nt of la w i s based on the ear lier case of Foakes vs. Beer (1894) 9 App . Cas. 605 , a decision of t he House of Lords. The pri ncip le, howe ver, is olde r . It ha s its tra ce to 1602 and Lo rd Coke in Pi nne l 1 s case (1602) 5 Co. Rep. 1170. The ma tte r seems to have been settled at Common Law. Equi t y, however, in t ervened to mortify the rig ours of t he common l aw. Following the broad princi ple of Lord Cai rns i n Hughes vs. Metropol i t an Railwa y Company (1877) 2 App. Cas. 439, 448, Lord De nnin g provided the answer 1n D and C Bui lders vs. Rees ( 1966) 2 Q. B. 617 . In Hughe s vs. Metro politan Railway Company Lord Cairn s said : "I t is t he f i rst principle upon which all co urts of equity proceed, that if parties, who have ente r ed into defini t e and di stinct t erms involving ce rtain legal resu lts, afterwards by th eir own ac t or with thei r own con sent enter upo n a course of negoti at ion s which has th e eff ect of leading one of the part ies t o sup pos e that the strict rig hts arising under t he co ntract wi ll not be enforced, or wi ll be kept in su spence , or hel d in abeyance, th e person who ot herwise might ha ve enforced those ri ghts wi ll not be allowed to enforce them where it wou ld be inequ i ta bl e having reg ard to the dealings which have taken place bet ween t he parties." Lord Denning obs erved in D and C Bui lders Ltd vs. Ree s that the effect of the prin c ipl e wa s to suspend the st ri ct legal r i ghts and preclude en f orc emen t of t he ri ghts. The appl ication of the principl e was subject to what Lord Denni ng said later in th e j udgment which has a lso a sig nific ant bea r i ng on the resul t of this case. At page 62 5 Lord Den ning said: "In applying the principl e, however, we mu st note the qualif i cat ion. The creditor is only barred from his legal righ ts when it would be i neq ui table fo r him to i nsist upon t hem. Where there ha s been a true accord, under which the credito r voluntarily agrees t o accept a le sser sum in 3/ .. .. - 3 - sat i sf actio n, and the debtor ac t s upo n th e ac cord by paying the l esse r sum and the creditor accept s i t, t hen it is inequitable f or the cr ed i to r af t erwards t o ins ist on the balance. But he is not bo und un less there has been truly an acco rd between them . " In paragraph s In thi s cas e I have been at great pains t o di scover i f there was any agreement at a l l betwe en the pl aintiff and the de fe nda nt . 5 (c ) of t he af fi davit it is deponed t hat the re w~ .: a reque st by the def end ant for payment by instalments if the pl ain t iff contin ued to supply hi s petro le um produc ts on cash terms . There is no suggesti on that in the dis cu ssions t here was an agreement. The pa ragrap h co ntinue s with an as sert io n t ha t t he request was confirmed by a wri t ten reques t of 5th Ap r i l , 1993 . To my mind this means that t he pl ai ntiff had not agreed to t he request . In par agraph 3 (d) it i s de po ned t hat th e plai ntiff refused t he reque st . There wa s , therefore, no acco rd between t he pl aintiff and t he def enda nt to sus pend the payment of the money. Ev en if there was, on t he f acts as come out i n the affi davi t in support, t he agreement would not be enf orc ed f or l ack of consideration. In my vi ew t here i s no defence to the pl ai ntiff 's ac t i on. There is no tria bl e i ss ue. costs . Th e plai ntif f has agreed to stay of execut i on f or t wen t y-eight day s f or negot i atio ns . I di smi ss the applic at ion to set aside the judgment with I so order. Made i n Cha mber s th is 4t h day of Jan uary , 1994 at Bl antyre. D REGISTRAR COURT