Mauilidi & Anor. v Machinjiri (Civil Cause 1657 of 1993) [1994] MWHCCiv 28 (4 January 1994)

/ t ' I • ') . ' , IN THE HIGH COURT OF MALAWI 04- - 0 /-/'1;1/-- PRINCIPAL REGISTRY CIVIL CAUSE NUMBER 1657 OF 1993 BE TW EEN: P J MAUL I DI M MAULIDI and 1ST PL AINTIFF 2ND PLAINTIFF A E MACHINJIRI DEFEND ANT CO RA M: D F MWAUNGULU, REGISTRAR Maulidi, Counsel for the Plaint i ffs Man d ala, Counsel for the Defendant ORDER On t he 23rd of December, 1993, I gave conditio nal leave t o the defendant to defend the action. The pl aintiffs' a pp lication for summary judgment was made on th e 15th of Dec ember, 1993. After hearing legal practi ti. one rs of b ot h parties, I gave the defendant leave to d efend the a cti on on condition that the defendant pays th e sum of K34 , 500 in court within thirty days of the o rder. I p roc eed to give reasons for the order. The plainti f fs took this action on the 29th of November, 1 99 3 . They were claiming the sum of K62, 080 from the d ef endant. According to the statement of cla im, under an oral agreement between the plaintiffs on the o ne hand and the defendant on the other, the proceeds o f sale of spa re part s bought in South Africa and sold to Lotus Mot ors in Malawi were to be ~hared among them equally. To that end the plaintiffs paid k4,000 in Sou th Africa to t he defendant towards the purchase of the sp are parts. The sum of k4,000 was to be deducted from the d efendants con tribution. The plaintiffs aver that the sp are parts It is alleged wer e sold t o Lotus Motors at K87,120.00. tha t the sum of money was received by the defe ndant from Lot us Motors. The defendant has not paid the p laintiffs thei r share of k62,000. The writ a nd statement of cla i m we r e served together. The re is no notice of intention to defend on the file. 2 I • •••• - - The re is however, an application for summary jud gement. I p roceed on the basis that there was a not ice of i n tention to defend otherwise an application for summary judgment can only be made where the defendant has lodged a notice of The affida vit in support of the application for summary judgment e xhibits a defence a defence cannot be served witho ut the defendant lodging with the appropriate registry a notice o f intention to defend . intention to defend. - The defence is a denial of most of the averments in the statement of claim. A few paragraphs of the defe nce are pertinent to the application itself and the resu lt. It i s unnecessary, therefore, to refer to the whole. d efence. I n paragraph 18 the defendant admits that two th irds of k4 4, 325 is owing to the plaintiffs. In the affi davit in s upport of the application, the claim after tak ing into a c count what has been raised in the defence, has been s c aled down considerably. The claim has been red uced to K34 ,550. is sum co n tained in paragraphs 4, 7 and 20 of the defe nce. The defendant's defence this to the spirit of The defence is that in so far as the defendant has not b e en paid by Lotus Motors the action is prematu re going the agreement between the parties. b y Ac c ording to paragraph 4 of the defence, Lotu s Motors u n dertook to pay sixty days after delivery of t he spare p art s. the 2nd The spare parts were delivered on No vember, 1993. Paragraph 7 of the defence sta tes that i t was an express term of the agreement that the proceeds would be shared only after payment had been e ffected. The defendant's defence is, therefore, that Lotu s Motors h as not paid him. The plaintiffs cannot, therefo re, sue f or the money if Lotus Motors has not paid him. to is the only defence Th e fact that Lotus Motors has not paid the mone y to the the pl aintiffs d ef endant application for summary judgment. In my opinion, if the p ar ties agreed that the money would be paid o ut only a f ter payment by Lotus Motors, it is a formidable defence t o the action for the money that Lotus Motors has not p ai d him the money. It is not clear from the p leadings though that the plaintiffs were aware that Lotu s motors was to pay after sixty days of de 1 i very of t he spare p ar ts. The plaintiffs' contention however, is that in the money has been paid to the defendant by Lotus f ac t The plaintiffs so allege in the state ment of Mot ors. c la im. The plaintiffs so depone in their affi davit in support of the application. The source of the information is disclosed. Furt her than t hat the a ff idavit is sworn by the Accountant of Lotus Motors. to prove payme nt: is an affidavit there 3/ . . . . . - - Th is affidavit is objected to by the defendant , it being swo r n at the plaintiffs' legal practitioner's of fice in co nt ravention of Order 41, Rule 8 of the Rules of the Su pr eme Court. legal pr ac titioner for the defendant, that the affidavit should no t be relied on. this st a nce, the cases on point are Re Bagley (1911] 1 K. B. 31 7; Baker V Ambrose [1896]2 Q. B. 372; and Park inson V Cra wshay [~894] W. N. 85. agree with Mr. Mandala, If authority is needed fo r I exclusion of Th e is not the affidavit, de tri mental to the application because the affida vit in su p port of the application for summary judgment stands In it, it is deponed that the money has be en paid al on e . out and the source, as required by Order 14, Ru le 2(2) an d Order 4 1 , Rule 5 ( 2) of the Rules of the Supreme Co ur t, is supplied. however, to borrow a term from Lord Denning judgment should be granted in this Wh et her a summary ma tt er turns on whether Lotus Motors has p aid the de fe ndant. So far I have been trying to show the doubts wh ic h I have with the defendants assertion that he has no t been paid. This to me is a case where I near ly think judgment for the plaintiff. The defence I sh ould give is , in Va n Lynn De v elopments Limited V Pelias Construction Co mpany, [1 9 69]1 Q. B. 607, "shadowy". The condition of payment in to court these days is given readily where the defence appears to the court to be a sham or shadowy , or the the co ur t pl ai ntiff (Wing V Thurlow [1893]10 T. L. R . , 53; Va n Lynn De ve lopments Limited V Pelias Construction Compan y, ibid. Th at is why on 23rd December, 1993, I gave leave to de f end the action on condition that the sum cla imed by th e plaintiff for summary judgment should be pa id into co ur t within 30 days. is p e rsuaded nearly judgment to give to Made in Chambers this 4th day of January, 1994 . •----•--------h--•----•----·- , ' .