Mkwezalamba t/a Gands Transport v Cargo Force Ltd (Civil Cause 1480 of 1994) [1997] MWHCCiv 13 (19 May 1997)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 1480 OF 1994 BETWEEN: RACHEL G. MKWEZALAMBA t/a GANOS TRANSPORT ............ PLAINTIFF AND CARGO FORCE LIMlTED DEFENDANT CORAM CHIMASULA PHIRI, JUDGE P. Nkhono of Counsel for the plaintiff Defendant - absent/unrepresented Nasiyaya - Official Interpreter Mr s K 11 a n - O ff i c i a 1 Re c o rd e r JUDGMENT rendered by The plaintiff's claim is for the sum of SAR39,860.00 or its in respect of transport Malawi Kwacha equivalent being balance services the defendant's own request. The plaintiff further claims the sum of the K18,772.98 being balance the defendant at plaintiff to The from 1st interest on plaintiff claims The the rate a s September 1 9 9 4 a t plaintiff also prays for costs of these proceedings. the latter's own the found the c o u rt may de te rm i n e . in respect of services rendered by the defendant at request. due the plaintiff sums to The defendant denies owing SAR39,860.00 and K18,772.98 and puts proof thereof. claimed above arise out of trips unauthorised by and as such plaintiff. sums of the plaintiff to strict The defendant further states that the amounts the defendant the the plaintiff the defendant liable for the same is not the to The the held absence of represented by Messrs Lawson the defendant. in case was Initially the defendant was and Company who were discharged on 5th September, 1996 on the ground that they were unable to get instructions from their client. The matter was then scheduled for hearing on 25th and 26th March 1997. A notice of hearing was sent by post but the defendant did not appear. On 25th March 1997 the matter was adjourned to 15th and 16th May 1997 and the court ordered that service should now be by way of inserting two adverts These adverts appeareJ in the Daily Times of 7th and 8th May 1997. The The court ordered the plaintiff to defendant did not appear. proceed giving evidence in the absence of the defendant. in the local papers. H io i--t C:X> i JR ·r 4i8~AR-.. ~ l / -2- In in the Republic of South Africa. It has been tendered . in court as Exhibit P1. The plaintiff testified that she is a business lady. She is a transporter under the style of Ganas Transport and has been in bus in es s since 1981 . the course of her business she ca me across the defendant who asked her to ferry its cargo between The Malawi and Johannesburg defendant prepared an agreement to that effect in the form of a It was signed by both parties letter dated 16th February, 1994. on that date. In the execution of this agreement the plaintiff prepared and sent in respect of services invoices rendered but the plaintiff. to P8 which are invoices number 74 of 16th May 1994 for R4,500.00; number 61 of 26th May 1994 for R4,200.00; number 63 of 29th May 1994 for R10,080.00; number 76 of 16th May 1994 for R5,000.00; number 55 of 10th June 1994 for R5,000.00; number 56 of 27th June 1994 for for R6,000.00 R10,080.00 respectively. She stated that the defendant only paid R5,000.00 in respect of invoice number 76 leaving a total balance of R39;860.00 which she is now claiming. the defendant has not paid the defendant for payment in court exhibits P2 is SAR44,860.00. The total sum the sums due 54 of 27th tendered number June She and to to The plaintiff further produced other invoices which have Invoice number 81 of 10th May been marked as exhibits P9 to P11. Invoice number 62 of 27th May 1994 is for 1994 is for K3,198.00. then rate of R10,089.00 converted 2.0872 on 10th June 1992 came to K21,038.98. The defendant paid K15,000.00 Invoice number 53 for 10,000.00 Zimbabwean dollars converted into Malawi kwacha at the rate of 0.9536 on 13th June 1994 came to K9,536.00. The net total balance for these 3 invoices is K18,772.98 which the plaintiff the end of her evidence. leaving a balance of K6,038.98. into Malawi Kwacha at is now claiming. This marked Finally the Counsel submitted on her behalf that under Section 11(a)(v) of the Courts Act - (Cap.3:02) the High Court has discretionary powers to direct interest to be paid on debts, including judgment is a debts. Counsel has contended business lady she relies on proceeds from her business for the transport cashflow. She has been financially inconvenienced. He submitted that the plaintiff could have invested this money for He prayed that the court should award her interest at profits. Bank lending rate up to the date of payment and that the same be assessed by the Registrar. the plaintiff that since am convinced I the plaintiff and I am satisfied that the plaintiff has proved her claim up to an there was the requisite standard. for the agreement between I find as a ferrying of cargo between Malawi and Johannesburg. the fact that after rendering services the defendant but dues. and plaintiff's I award the plaintiff these sums. The forex to be K18,772.98. converted issue of interest, I am also inclined to exercise my discretion in favour long of the plaintiff for the reason that these debts have been the plaintiff invoiced fully discharged SAR39,860.00 that the defendant the defendant has not into Malawi Kwacha on payment. remains still There the On • -3- award in business of the plaintiff is not She would deposit any surplus money lending overdue. However, in a money as Banks do. The interest rates for such savings or fixed deposit account. lending rates. Therefore I accounts are usually lower than Bank savings would deposits The interest is awarded up to the date of payment of judgment debt. Since the rates have been fluctuating and the date of payment is unknown, the interest will have to be assessed by the Registrar or his deputy. The defendant is also condemned to pay costs of this action. interest rate of ordinary from 27th July 1994 when this action commenced. the plaintiff PRONOUNCED 1997. in open court at Blantyre this 19th day of May, G. M. Chimasula Phiri JUDGE