Matiasi v Milisi (Civil Cause 1871 of 1994) [1994] MWHCCiv 20 (1 November 1994)

IN THE IIIGII COUWI' OF' Ml\Ll\WI PIUNCIPJ\L REGISTRY CIVIL C~USE NO. 1871 OF 1994 - - - - -- - - - - I3T~TWEEN : M. Ml\TIASI . .. . . . . . . . PLAINTIFF 7\ND D. L. MILISI . . . . . . . . . . . . . . . . . . . . . . . . . . DEFEN Dl\NT CORAM : l\CTI NG J KUM.l\NGE, Msi.sha , Cou ns e l for the pl ai nti f f Chi.r wa, Counsel for U1c defendant Nyire nd a , Court In t erpreter RULING By an or.-iqj nai·i ng summons dated 28t h July 1994, t.hr-' p l ainl~iff prays for ;:i n order t.hat t h e defendant do : - (a) (b) (r;) Imme diate l y rot.urn in qood condition a min ibus seized o n l4Lh September 1994 to l:. he plaint.if:[ . Pr:Jy th e p lainU ff K700 per day fron1 dat e o f sej zurc t.o date of i..nc o me U1 e minibus wa;; maki n•J per day. r0.turn , b ei n g il:s Pay c1 s um of K59 , 578 be.in<; mon ey spe n t on t he purcllo.se .i.ncur-r0-d pr ir:e an cl , l:.he minib u s b e fore it was s0 iz ~ d. t h e repairs of c:-:penses fo r The ac:Li. on having bee n commenc-:E:'-cJ b y a n or.i g i n ati ng summon~:, e v i c1 e 11 cc was by a f f i d av j t:. s . f a c ts a re s imp le arid st r a i g h t. Bu i~. Lil e cl omagcs c:lnj med are made under a wrong mode of f orw21rcJ . s .111 cc t h ey fc1.ll un der t ot·t , or c-:onLract. cor.im0ncc rn ent o f l: h e b c1 ~--:. i s o f o r d o rnagcs as stotcd above· w.i l l n ot be easy w.i l: h o ut Louc h lnq mc1t.l.cr-s of t.o co mmenc:e L-.he act.ion by a wr j I: . Th e prop0r pr occ dur 0 A ::; s u c: Ii p 1: o s <:..' c u t j 11 g b r- c u r; 11 u f J u t. y . t:Jierefore cr,11l· c;,cL . c-: 0 s c o 11 , 1ct . jo n, tort The t h e .is 01- 01·dc•1· Book ) p 1-c :,c:1~ il>c~; l1 ,7 VC Ir_) br r:rn11111 c 11 cccl ') n1l 0 2 o r 'I' l l(' !<tile· :~ o r Ll ;c• S llp l'(• JllC Co 111 · L ('f'h C' i:1 1,7 1 111r1l l.cJ"~, fo1 · l ly ,7 w r· i I _ of ~:u1111110 11 s . 1.·. h c c l ,7illl or cl.1111 ,:igcs r-:vr'n f{ u !. c ili-, 4 of t-.h0 \'IJli.il· r i;u:: li, - - In same orde r r es tricts originating summons to matters whi ch involve the co n s t ruc t ion of an Act, deed or contract (just to me n tion a few) or whe re there is likelihood of a substantial di s p ute of I cannot intertain the c l a im s for fact. damage s . !:he facts and d e c i sion the ret urn of the vehic le a nd n othing else. The case stands or falls e n t i r ely on the b asic c on struction of (ex hi b it "OM l"). t herefore restrict my observation, anal ysis of t h e agreement tendered, the order sought for t h e present case to I As r eg ar ds the damages in issue I order that th e p l aintiff shoul d comme n ce a separate action by a writ of summons t o e nforce Tu rni ng to the relevant issue, that is for th e re t urn of them. t he question I have to ask myself is whe th e r under the mi nib us, the a g r ee men t the defendant was justified in seizing t he minibus whi c h i s now i n his custody and possession. It is ra ther disheartening to see that the case wa s argued by bot h c oun se l pureJ.y on the affidavit evidence witho ut c itation l eg al author i ty, statutory or otherwise in supp ort of of an y their a rg ume n t s. This is a mercantile contract which bo th sides could hav e bac ked up with cited authorities, be it commo n J.aw or statutory . Su ch approach leaves the court in a rat he r awkward t he court is left with the burden of do ing t he work situati on a s that c o un sel did or ought to have done soon before or s o on after the ac tio n c ommenced. The pleadings and the eviden ce adduced, whet h e r o ral ly or by affidavits , only give guidance as to the law the appli cabl e membe rs of e x ert on as officers of themse lve s, mu ch effort to assist the bench by explor ing the Jaw t h e p ri nciples that may appear relevant to th ei r cases. along t hi nking . Natur al l y judgment sounds good if it c ontains . I t ratio sound support of and that dec i de nd i. the bench must in respo nsib ili ty and counsel. occupy ach i e v i ng th at goal. t hat excise involves too much research an d c a n no t b e denied that a in every situation. front.line p osi t ion therefore wish the court , th e s h a re principles f astidio u s the bar, the bar I would Both and the in Not wi ths tanding such weaknesses as hereinabove po in t ed out, t he e v i de nc e a s disclosed by the filed affidavits is a s f oJ. J.ows: On l Gt. h 1994, l\pril the defen d a nt , a mol~or vehicle which has been described in all the Its make or mod el has not~ doc ume nts of p rocess as "l\ minibus". .is "CZ been re v e al ed to the court save the Registration No. whic: h 6 7" . I shall re fer to the veh i cle a s ei t her "the minibus" or "the vehicle". !:he pL:dnUff bough t t hr ough this ruling therefore f rom Al l Th e v ehi cle was offered to the plaintiff as a b uye r thereof Having accepted the off er, the plain t.if f made a at K 65 ,0 00 . down -payment o f KJ0,000, leaving a balance of K35,000 , wh ich - J - th e these proce e d i ng s. sub j ect matter of that the plaintiff should The J.a t er b e ca me parties ag ree d l iquidate t h e balance wi t hin s ix mo nths, that is from 16th April to 16th Octob er 1994 . Compel l e d b y the dic t at e s of prudenc e and dil.ligence , th e parties ag r eed t o red uce their agreement in writing. Exhibi t " OM l" is a in lo n g hand and tr u e cop y of that agreement . sig n ed by bo th parties and duly witnessed. It was written in cond i ti o n s were Chichewa in c orpor at ed t her ei n. The following represents an almost literal tr a nslation o f It re a ds : - t hat agre e ment from Chichewa into E n gl ish. It was writt e n terms or intended the and al J. a s " Paid KJ0 , 000 Ba l ance 105,00 0 , wi ll b e p ai d with i n 6 mo n t h s st ar t p aying o n 16/5/94 at a sum of K5,833.33 p e r t o pa y, we shall s e ize the vehicle ". I f h e for buying a minibus (CZ 67) f ail s deposit. and will month. t o run it . Af t er t his agr e eme nt, the plaintiff was given d elivery of th e mi n i bu s The plaintiff did actuall y op erate the minibus an d he k e pt his wo rd for thre e months up to Ju l y 16th but fa i led to pay for Au g ust a nd September instalments of K5,833.33 ea c h . t.o re p ossess t h e v e h ic l e and h e s e ized i l::. , and took it ho me where j t Th e d ef end a nt s e .i. zed th e mini b us under the is k e pt to th is duy. au s pices of t he op e ra t ive authority to seize as stipulat ed in the wr i tten ag ree ment. By mi d S e pt e mber 1994, the defendant saw t h e need In h is affidavit in opposition the defendant ad mits lhat the and abo v e ov e r pl a intif f made the stipuJ.atio n as to p ayme nt, and made th e KJ0,000 which was paid as d e p osit, in strict obser va nc e of t he folJ.owing cas h p ay ments. payments fur the r On 17 /5/ 94 On 16/6/ 94 On 1 6 /7/ 94 Tota l pa id wi t h i n 3 months K 5,833.33 I< 6 ,4 26.66 I< 6 , 135 . 00 I<lB,394.99 i s It His not 1 994 ,July _in di s pute that after 16 t h He further cont e nds p a y any more money. the p l a intiff did no t reason for such failure being th at t h e minibus was grounded and it r eq u ired major l::.he rep a 1.rs to be c arr i ed ou t . vehicle was t h e onl y sour ce of income wh i ch he was us i n g to pay off t h e d ebt to t h e defendant , its i nactivity had autom atically income for the discharge of t he debt. frustrate d h is sourc e of sum of Kl l,578.00 From Aug u st t o mi d Se p te mb e r he had spenl::. a fu r l::. h er contends that the minibus was capable repair cos t s . of makin g a The e vidence h owever does l: h e pla .i. n tif f had notif j ed the def e n da nt about not s h ow whet h e r the repa i rs work s . d efendant t h at by Sept emb e r 14th he was told about th e problem. con c edes On 16th Septemb er t h e def e ndant nev ert h e le s s went and t ook in his own affidavit, I< 7 0 0 . 0 0 per day . He s um o f t h at s j nr.e But t h e \. - 4 - t hat by 1 6th Septe mber possess ion o f t h e minib u s . Alth o u g h the act ual d a te th at t h e seiz u re was e f fected , on e clear , minib u s t h at dat e mai n tai ned and c h er ish ed t h e s e ntime nt th at i t wa s for hi m to s eiz e t h e ve h ic le in co n for mit y wi th signed. t h ere i s no a gr ee men t as to t h i ng remains the t h e defe nda n t t h e ri gh t ti me t h e ag r e e ment t h e ve h i cl e was seiz ed and b u siness p u t t o a hal t . By I be a r reservi n g t h e righ t i n mind th a t t o se ize , whi c h r ea ds . t h is who].e a ctio n s pa rk e d fro m th e term " If he f ail s to p a y , we s h a .1. J. s e i z e th e ve hi c l e " . Th e p r o n o rnin a l u se of th e wo rd "we " is s u ggestive of the fact that th e re is pJ.u r aJ.ity of p e rsons who own the ve h i c l e b u t nonetheles s th at is beside t h e r es ge s tae in t h i s ma t ter . s t at e s s u c h t h at Fur t her more u nde r Co mi ng now to the s u bs t a nt i v e is s u e , my att e nt io n h a s been ( c ap 4 8 :01), es p ecia lJ.y s ection Secti on 3 ( 1) defi n e s a Co ntr a ct of Sa J.e as on e wh ere t h e t h e pr ope rt y f o r mo ney c o n s id e rat .i o n, ca ll e d " p r ice ". focussed o n The Sa l e of Goo d s Ac t 3. sel J. er t r a ns fer s or ag r ees to t ra n s f e r the b uy e r ( 3 ) furt h e r conditiona l . the goo ds is tra n s f e r re d fro m th e sell e r "sale ". some con di tio n agreeme nt to s e ll''. Th e co urt was n o t for t he v e h i c le was s u r re nde r e d it was not . But one thing sta nd s o ut as t r u e , is a n a g ree me nt to se ll, as en c umbe red wi th seize balance of right plaintiff . i n g o o ds to Sub s ection a ab so l ute or s ubse ctio n 4 , if the p rop e r ty in is a i s to b e at s ome f utur e dat e s ub j ect to it is call ed "an t o ld wh e ther th e blu e book I suppose t h at this to that r ese rvation to the to transfer pro p e r ty or ti t l e Th at co ndit io n a mo u nts to a t h at i s t h e condi t i on t o th e b uye r or not . v e h i c l e 1< 3 5 , 0 00 . c on trac t ma y b e to th e b u ye r, i t But if t ra n sf e r t h e minib u s , p la in t i f f' s t h e r ea f ter fulf i ll ed , fai lu re to p ay t o b e up o n t h e t h e i n, i n th e l ays dow n Secti on 1 9 co n t r a c t , t h e r ule s whi c h ma y d e t e rm i n e ti me wh en Section 1 9 (1 ) t h e goods upo n sa l e is to pass . the prope r t y says that to a sc e r t ain t hat inte n tio n, r e g a rd s h a ll be h ad to the the terms of circumsta n c es of in i f a n inte n tio n diff e ren t from situatio n s li ke th e pr e s e nt case , i n te ntion of sa l e a nd d irect. tra n s fer of prop erty is the usual apparent o n i f he exercises h i s th e agre ement. When expoundin g o n t h e mea n i ng of " d i f f erent i n te n tio n ", th e book called Be nj a mi n On Sa l e 1 97 4 Edi t i o n, p a rag ra ph 310 ha s th is to say :- to seize as a u t h orised by co nd uct of It me an s t h e th ere f ore p ar t ies an d t h at eve n just i fi ed face of se ll e r right r,ase . i t, t h e t h e th e i s "Th e mo s t commo n sit u at ion i s wh ere the p a rt ie s in ten d that t h e pr o perty to the buyer , un ti l th e pdcc i s pa i d ". s h a ll no t pa s s t h e goo d s _i_ n ·----- - --- - ---- - -- - - - - -- -- - - -- -·-- -··-·- - A similar remark 1s reµeatcd und e r parugraµh 18 1 of t l1 c In Re t he par t ies. sa me b ook . Reservation to transfer property was considered and upheld i n a n umber of cases . What is important is the intenti on of ( HENDEHSON BROTHER S) LTD l\NCI!OR LINE ( 191 7) Ch. l. Goo ds bought subject to a condition tha t payment. r:ould not have property .in t h e m p ass un U l was to be deferred , In fact under secti o n 29 it such time that the p r ice was paid. ma k es th e delivery of specific goods and payment con r:urre nt factors without whir:h property may pass only where the int:entio n is clearly to that e:E fer t . ( RV ) L'fD V S BIGM l\l,T. , ( 19 67 ) law Both 514) . t.he defendant in thi s acl: ion. pr i nciples wo uld seem to support But wo uld it rea Jly? the statutory and ( See al so WARD common 1 QB the I abov e , to be the cose look ed at ta k e it t ha t Notwithstanding the defensive principles of h as law observed a feel I h erei n that is the "l: ime fact.or " wil: hin t h e agre0ment different angle , itseJ.f . the agreement was drafted and pres ented 'for signature by the defendant and his co - owners by the use of the word " we " . Under the Contra prof erenturn Rule , a do cument .is a different st.rict l y r:o nstr u e d I inte n t ion is shown , 218. take t h e l:h(: r eservat:jon defe ndan t . to pay st a te me nt , it is brief and clear . th e ve hicl e will be se ized" . Is his failure of referral t.o each of i nstalment s or to the whole a mount of KJS,000 balance? against (Bur to n v Engli s h(l88J) 12 Q B D " agreemE:nt I [ a prop e r~ construction is placed on th e If he fails to pay what? ,;ell " was dra ft ed by It says " If he fail s the maker , the " six " unless from that. to .i t I am af raid to say without any hesi tatio n that the term does not say "If he fails to pay any instalment" but "If h e fails to pay " - To pay what? The whole balance. Placing a strict but equita ble const.r uct io 11 on this sentence , one wouJ.d n o t b e Jo st if by way of construction one takes the word " pay " to refer to the amount " IC35 ,000 ." Th e plaintiff ' s failure to pay could no t refer to the t ime when he failed at l east one or two instalments. He had six months, from 16/5/94 to 16/10/94 within whic h to pay that amount . After all the defendant kn ew that by 16th July a total of Kl8 ,J 94 . 99 had alr ead y b e en paid towards the reduct ion of that balance . Although the def e ndant says in his affidavit that by I do not t here was a balance of K20 ,0 00 sti ll due , that date , agree . The balanr:e wa s KJ.6,605.01. the defend ant got a su m o f K48,J94 . 99 . WJJl it r ea lly be justi ce for the d efendant to have both the v e hjr:J.e and the mo ney? Has he return ed this I do mon e y to t h e plaintiff to show his sincerity in the matt er? not think so? l\J.l in al l t i me Th e pay the balance KJS ,000 ba l a n ce ) was 16th October 1994. May , 16 th Ju ne , 16th July , 16th August, 16 t h September, bul: 16th fa ilure to th e whole It r:ould no t be on 16th that would deter mine the plaintiff ' s isolated i nstalme nt but. ( n ot of an --·--·-··. - -- - - - - -- - - -- - G - T h e defendan t: if h e were a man im bued with the October 1 99 4. q ualities of se lf co ntr o l , should have restrained him self and exercise his ri ght of s e izu re on 16th October . He him self chose his agreement to be drawn u p If the d or.ument j s vague , that vagueness cannot be accredit ed to him, not an inch as I visualise t h e dca J. , but to the plaintiff a s a buyer . .in that fashion . that is none of my concern . If there 1s anot h e r agreement besides the o n e now under a m concerned, review , supporte d by t h e evide ntial do c ume ntation the court ha s , the sale wa s for K65 ,0 00 o u t of which K48 , J9 4 . 99 is p a id, and the balanr.e a balance of K20 , 000. May be is Kl6 , 605. 01 . that arises out of h as not been a gr ee me nt a exhib i t ed to t h is court . I do n ot ac cep t As far as I s e par ate that To do eq u ity 111 the mat ter I feel it. is very difficult is only on that da te alone, because by seizing the ve hir:le on 14th or 16th S eptember before the final elate of 16th Octobe r , the defendant is i n breach of the term. By implir.ation the final amount feJ. J . due on that date, and the plaint .iff would it constr uctively be said Lo h ave failed to pay th e whol e 105,000. In view of I order that as far as th e rcst r icLive ter m is co n cer ned , that term be rescinded The from the agreement , plainti ff must pay t hi s d ebt within four months from toda y. The vehic le is not to be sold or in a ny way disposed of to any third i s paid. Wh e n fully paid, the p a rties un ti l to plaintiff sho uld be given aut h ority change t: he ow n ership of t h e mi nibus. t h e defe nd a nt ' s co n r;tn1cti ve breach, t h e agree men t as a mere debt. th e whole balan ce (blu e book inclus ive) a nd mak e that May u n der section 14 of the Co urt s Ac t of the Rul es of S up reme Co urt , would perhaps h ave co me up as a preli mi nary issue. r: a se s ta n cls now, above pronounced . I say however th at h ad th e def e nd a nt app l ied to court (~ap 3 : 02) or Order 29 Rul.e 2 the construct..i on of the agrceme11 t I3ut as the s u ccee ds to such extent as herein the actio n a wr o ng assumption Turning to the qu es tion about costs , I am of the view that t h e defendant acted under time had arrived for him to exercise hi s right u nd e r the contract. It is there. to seize was appare nt. , nonethe l ess Equity t h erefore compels me n ot to punish t h e d efe ndant further. Ile wants his money a nd or d er _i ng him to p ay a n exorbitant amount. in costs , would mea n clo j ng h i m mu c h Ile s h ould incur only such costs as would entit: l c h i m l: o rel:. urn the min ibus to the plaintiff in t h e man n er it was before he seized t h e vehicl e. But as rcgc1rds the full prosec u L.i o n of this case , each pa rty is to pay own costs . i n ju st:.ir:e . con di t:.ion that t hat th e / ' .-,> ,1' ," / 1 9 94. - - :; . /~-- 0, . S L Knman ge ACTING JUDGE