Bouri v Mudalliar (Civil Cause 416 of 1979) [1985] MWHC 2 (19 September 1985)

j pet : S 4 § _ 4 * A> IN THE HIGH COURT OF MALAWI fe CIVIL CAUSE NOs 416 OF 1979 BETWEEN s SUBASH Ga BOURL @eoeceoc¢go2#reessoo® PLAINTIFE mA KADERVILLE V. MUDALLIAR .2ceesoe DEFENDANT Corams— Unyolo - J Msiska of Counsel for the Plaintiff Chizumira of Counsel for the Defendant Kaundama — Court Clerk BU bE NG This is an application on the part of the plaintiff for summary judgment against the defendant in this action for the sum of K25,5 34. The history of the matter is as follows. By his writ dated 22nd July, 1979 and statement of claim filed therowith, the plaintiff claimed from the defendant the sum of K30,534 being money payable by the defendant for money allegedly had and received by the defendant for the use of the plaintiff. Alternatively the plaintiff claimcd the said sum of K30, 534 on the basis of an account. Further, the plaintiff claimed intcrest on the said sum at such rate and for such period as to the Court might scem just. And on-the 9th August, 1979 the plaintiff obtained judgment for the said sum of K30,534 plus interest to be assessed, the defendant having entercec no appearance in the action. However, that judgment was subscquently set agide by Jere, Je and the defencant given Leave to file a defence. he defence was indecd filed. It is guite a lengthy <efenee wherein the defencant denies owing the plaintiff the sum claimed or at all anc further denies cach and every allegation containcd in the plaintiff's statement of clain. I will have more to say On thas ospect Laver. Then cane the present application andy as I have indicated carlicr, the plaintiff applies for final judgment for the sum of K25.534. It is said that’ this sun represents the balance outstanding on the K30,534 claincd in the statement of claim. There is an affidavit sworn to by counsel for the plaintiff in support of the application. It is a lengthy document in which the deponent deals with the divers mattcrs raised by the defencant in his ccfenee and avers that the said defence OT cen sa eee ae is"a sham defence filed purely for the purpose of delay and has no nerit whatsoever". <A number of docunents are also exhibited. This appears to be a convenient juncture to deal with one of the points taken by Mr. Chizunila,; counsel for the Cefendant, at the hearing of the application. Mr. Chizumila has submitted that the application here is irregular and defective in that the affidavit deposed in support thereof does not conply with the rules — 0214/2 of the R. SeCe, to be precise. The starting point is 0.14/2/4. ‘The relevant part of this Rule provides as follows: "Plaintiff's Affidavit - It is a neccsary ecntition for procecding under 0.14 that the application must be supported by an affidavit which corplies with this Rulc, otherwise the summons may be dismissed." The Rule goes on to further provide that such affidavit nust fulfil two requirements one of which is that it nust state the dcponent's belicf that there is no defence to that claim or part, or no Gefence except as to the anount of any damages claimed. And 0.14/2/6 makes it clear that such a statencnt is an cssential part of the affidavit anc that the usual words used in the affidavit are, “I verily belicve that there is no cefenee to this action! Such words have however not been usec in the plaintiff's affidavit here. What Mr. Msisha relics on is the averment rade in paragraph 6 of the affidavit where is is stated, “that the defendant's defence is- a shan dcfence filcd purely for the purpose of delay and has no nerit whatsocvery Mr. Chizumila has however urged that such a statement does not comply with the Rule hercine Pausing there for a nonent, it is to be noted that applications uncer 0.14 are usually mace when the defendant has just given notice of his intenition to contest the proceedings: before a defenee has actually x been served. Indeed it appears that the primary intention of the Rulc was that such an application should be mace before a defence has beon’delivered. Sec Mclardy Ve» Slactun (1890) 24 QBD 504. The requirencnt that there shoura be a statement on the plaintiff's afficavit deposing to the belief that there is no defence to the action seens Logical in such circumstancese The position in the present case is however different. defencant had already filed a defence at the tine the affidavit was dcposed to. However it is trite, and T would also rcfer to the licLardy ve Slateun case, owes ss am Je applications uncer the Rule may be brought even after a defence has been delivered. But in my judgment even there the plaintiff must in his afficavit still swear to the belief that the defendant has no defence to the action, that being the basis upon which applications under the Rule are brought. I have carefully considered the averment made in the Plaintiff's affidavit under paragraph 6 nanely, tthat the cefondant's defence is a sham defence filec purely for the purpose of delay and has no merit whatsoever", With respect, I think that what the deponent is saying there, in different words of course, is that the defendant has no dcfence to the action and that what has been put forward as a defence is only a sham defence, meaning, I st ppose, that the same is pretended and not genuine. Lovuxing at the matter in that light I come to the conclusion that the affidavit here does comply with the Rule. I an therefore unable to accept Ir. Chizumila's subnission on this aspecte The natter does not however end theree It is to be observec that the surmary jurisdiction conferred by 0.14 must be used with great care and that a defencant ought not to be shut out from defending unless it is very clear indeed that he has no case in the action under Giscussion. Sec 0.14/3—4/7. As a matter of fact the defendant need net at that stage show a conple te defence, All he needs to show is that there is a triable or arguable issue or question or that for some other reascn there cught to be a trial. 0.14/3-4/8 is alse pertinent. It previces that wherever there are circunstances which require te be clcsely investigated there cught tc be a trial and judgment shoulda not be given uncer Oel4e Roforring to the pleadings, the plaintiff's case \ is that he and the defencant together with one 5. Re Patel were at all matcrial times carrying on business as partners in a Gairy business uncer the name and 2 style of Mapange Dairy, with the cefenfant as the . managing partner. He pleads that the said business and all its assets were sold as a gcing ecnecern on the a pit 15th January, 1976. The anount claimed in this action he is said to have accruvec from that busincss and, as I have indicated carlicr, the plaintiff's action is for money had anc receivece Ane turning to the Cefence, the cefencant does not dispute that the partnership business uncer the name of Mapanga Dairy did exist. He denies however that the plaintiff was ever a partnor in that business. He pleads that the plaintiff voted himself cut cf the said partnership, so to speak, by failing to comply with two esscntial prcvisions of the partnership agreement in that (a) the plaintiff failed to pay his share of se the capital of the partnership, and (b) that the plaintiff failed to participate in the day to day running of the businesses, On these and other facts the defendant contends that the plaintiff cannot be heard to say he has any claim to the prcefits of the said partnership. In my judgment the defence Coes show that there are issues both of law and fact to be determined in this action. I have carefully considered what has been deposed to in the plaintiff's affidavit anc have similarly considered the exhibits filed therewith. With respect I do not think that on their own these resolve the questions raised by the defendant in his defence. Perhaps I should mention that exhibit "255" @did bother me initially. However, a lot has been suid regarding the ereunstances in which the said cxbibit was written and how the payment indicated therein was madee All in all it is clear when all the facts are considered together that there are in this case circumstances which require to be closely investigated if justice is to be done, and in my view that can properly be done in a full trial of the action, Accordingly the application fails and it is dismissed the defendant is hereby given lcave tc defend the actione Costs of this application to be the defencant's in any evente Delivered in Chambers this 19th day of September, 1985 at Blantyre. oS lie Be/ Uimyolo JUDGE