Alpine Enterprise v Sacranie t/ Plastichem Industries (Civil Cause 1469 of 1992) [1993] MWHC 51 (8 July 1993)

IN THE HIGH COURT OF: MALAWI PRINCIPAL REGISTR' CIVIL CAUSE NUMBER 1469 OF 1992 BETWEEN: ° he plaintiff Maul idi of Counsel for efendant tiff for summary judgement, f the Supreme Court. The davit. The defendant has also There are -arguments from both the application. However the ut clearly in order 14 rule laintiff to obtain, judgement es of a trial, if only the learly and if the defendant is not lefence or raise up triable This is an application by th made under order 14 of the pplication is supported by an af filed an affidavit in oppositio Sides of the merits and dermi purpose of summary judgement i (3-4 sub rule 1, that it enabl. Without going through the ini ‘plaintiff can prove his claim « ‘able to come up with a _ bona issues against the claim to be defendant iS the registered m Industries Limited and he al Bank Livingstone Avenue ey dated 16th May 1989, the * Yunus Sacranie to operate . for the United Kingdom and ated his bank account, and with the full knowledge and she plaintiffs contention that der several invoices worth nie who made various ted cheques drawn on the Bank in full payment of » number 1568 and the cheque perates a Bank account at ‘Branch, Limbe. By a power of defendant authorised his brot his bank account. The defend, his brother Yunus Sacrani also run the business of Plas approval of the defendant. they sold goods to the defe K1482,740 through the said Yu payments, and then issued defendant's account at Comme particular invoices. This is cag fl wea -2- umbers are 62071- 62076. The 65,000 was dishonoured by tt topped". It is the plainti cheque number 62071 worth »with the words “payment yer therefore that since ! a to be treated as cash, he defendant has no defence thé dgement should be entered gainst the defendant. has argued vigorously that \dgement should,be entered hleave to defend the case. with regard to the actual ained that the differences Yunus Sacranie made to the the cheques worth a total fendant's account for goods indants has not denied or ued. I therefore believe veissued by the defendant's .a cheque for all purposes a. paid. He further stated '§ not honoured. one cannot ideration. The stand taken known and well established jjur (1969) All E. R. Lord r Maulidi counsel for the de here are triable issues ther ather the defendant should be has argued that there is uncé jmount of claim. Mr Chizumila | re due to certain payments whi plaintiffs. However he explaif um of K381,140 were issued 0 upplied by the plaintiffs. ‘efuted that the cheques were | hat the cheques worth K381, 140 rother. Mr Chizumila has arguet S considered cash and it ough: shat if a cheque is issued an ‘ven raise a defence of want 0 yy the courts regarding cheques n Fielding and Platt Limited nning said: urt that abill of exchange eated as cash. It is to be | reason to the contrary." "We have repeatdly said in or a promisory note is to honoured unless there is s yromisory note is taken to -be consideration otherwise _cash. lhereas a cheque, bill of excha ye cash, it is clear that there: there is no justification for 9 [he defendant in his affidavi here was no consideration, an pposition has asserted that ever had any dealings with s§ contention which is not he defendant left to live in lawi on several occasions. ed with his brother Yunus of all business deals for .of the company. It is also id Yunus Sacranie is in the tered into these business ny Plastichem and therefore iow what exactly transpired. in Malawi and in Blantyre to requested him to swear an @ man who would know the ae ed on behalf of the company. sacranie and the defendant w that Yunus Sacranie entered on! the plaintiff's contention that country, he is the one transactions on behalf of the the one who is in a position Yet the said Yunus even though: be specific the defendant ha. affidavit. Yunus Sacranie deliveries and exactly what he: Bf The defendant's failure to pr Sacranie is taken to be an admi and then he issued the cheques if the defendant says that” plaintiff, that cannot be at defendant :personnally never plaintiff, his agent Yunus Sacr an affidavit sworn by Yunus hat the goods were received er the cost thereof. Even ver bought goods from the issue because although the business dealings with the id with defendant's knowledge Mr Maulidi has argued the po the plaintiff's claim. The amoun Statement of claim are inde ncertainty, with regard to hown on the writ and thenthe trent but the difference is defendant made some payments own on the writ to the figure on the statement of claim. ee 1 “also clear. I am convinced Claming is certain. Therefore CA ALAC eo Jane Mayemu Ansa ACTING DEPUTY REGIS tion I intend to appeal to a Court: Order as. prayed execu jon tayed pending appeal to be