Fatch v Mthawanji (Administratix) & Anor. (Civil Cause 137 of 1993) [1994] MWHCCiv 34 (26 August 1994)

~.~~. THE HIGH COURT OF MALAJI IN PRINCIPAL REGISTRY CIVIL CAUSE NO.137 OF ~ "7" '(' .. - ..... ~ I.. BETWEEN: T. H. FATCH (MALE) PLAINTIFF - and - MRS RUTH MTHAWANJI (ADMINISTRATRIX) 1ST DEFENDANT THE ESTATE OF R. S. MTHAWANJI .... · ..... . 2ND DEFENDANT - and - CORAM: MKANDAWIRE, J. T. Chirwa, Counsel for the Plaintiff Mvula, Counsel for the Defendant Nakhumwa, Official Interpreter Tsoka (Mrs), Recording Officer JUDGMENT The plaintiff is claiming the sum of KlB,000.00 being damages for alleged breach of contract by the first defend a n t . In December, 1992, the plaintiff was introduced to th e first defendant by Mr. Gondwe. Both the plaintiff and Mr. Go ndwe we r e working with the Plant and Vehicle Hire Org a ni sation in Blantyre. At that time the plaintiff was looking for a car to buy and the first defendant had some cars remaining in h er late hu s b a nd's estate. Mr. Gondwe who had already bought a car from the first defendant brought the plaintiff. The fir s t defendant had a Peugeot 505 registrat ion No. BG 4784 and th e plaintiff was interested in this car. The car was being so ld at a price of Kl2,000.00. The plaintiff did not have the cash a nd a s a civil servant he was going to purchase it on-governme nt loan. Th e first defendant had no objection to this sugg e sti o n . The loan application forms were duly completed by both pa r tie s and the vehicle was taken for valuation. The car was not in good condition. The body work was badly corroded all o ve r a nd the examiner made a list of 15 items which had to be do ne to the c ar. Thi s list was tendered as Exhibit P3. Since the ve h ic l e wa s being sold in that condition, the plaintiff wrote a J.et te r certifying that it be valued in that condition. He was pr epa r e d to carry out the repairs because the price was low. 2/ .... - - The loan application forms were sent to Lilongwe for processing on 23rd December, 1992. On 29th December, 1992 the cheque in the sum of Kl2,000.00 was ready and the plaintiff received it on 31st. On that very day the cheque was sent to the first defendant only to be told that the car had already been sold. The first defendant tried to return the ch e que but the plaintiff refused to accept it. It was tendered in e vidence as Exhibit Dl. has not been reversed and he is still suffering deductions from his salary. It was the plaintiff's evidence that the Joan In early 1993 he started looking for a similar car. He found one at Duwe Motors at a price of K30,000.00. He failed to buy this car because his loan had not been reversed. He is now claiming Kl8,000.00 being the difference between the two vehicles. lot of travelling he was making Kl,000.00 per month with his car which broke down in December, 1992. He has now lost this revenue because of the first defendant's breach. It was also his evidence that as his job involves a The second witness for the plaintiff was Mr. Willy Pwetekani of Duwe Motors. He deals in second hand cars and he has been in the business for some 5 years. plaintiff went to his place looking for a car. There were several cars, but the plaintiff was interested in a Peugeot 505 at a price of K30,000.00. said he was going to look for money to buy the car, but he failed to do so. Mr. Pwetekani told the Court that a similar car would cost around K35,000.00 now. He said this type of car is difficult to find on the market. It was a 1986 model. The plaintiff In early 1993 the The only witness for the defendants was Mrs Ruth In December, 1992, Mr. Gondwe introduced the Mthawanji. plaintiff to her. The plaintiff was interested in a Peugeot 505 BG 4784. She did not mind the government loan so long as the plaintiff came up with the cheque very soon. She did not promise that she would not sell the car before the cheque if someone brought cash. The understanding was that if th e plaintiff brought the cheque he would get the car, but until then, she was free to sel l it to anyone who brought cash. Later, Mr. Gondwe brought Mr. Ndovi who had the cash and th e car was so]d to him. She then asked Mr. Gondwe to inform the plaintiff that the car was no longer available. evidence that she wanted to sell the car very quickly because she needed the money and the car was in a bad state and she did not want its condition to get worse. It was her In cross-examination she said she had completed th e loan application forms at the plaintiff's insistence. She t o ld him that she needed the money fast. 3/ .... - - It was If I find that there If on the other hand I find that th ere was no co11tract, Th e first defendant This case invoJves the basic principles of the J aw of contract. The question I have to determine is wheth er there was a binding contract betwee n th e parties. was o n e, then I must go further and find whether there was a breach. then th e questio n of breach will not appJ.y. wanted cash for the car and she wanted the money fast. her evidence that she ne e ded the money and so she wanted to sell the car very quickly. Th e pJ.aintiff did not hav e ready cash so he negotiated with her and offered to buy the car on governme nt loan. She e xpressed reservations knowing that sometimes government J.oans take long. She told him that she would not mind hi s b uying the car on loan so long as the cheque came very soon . There can be no enforceable contract unless there is an offer and acceptance. There is no doubt that the plain tiff had made an offe r to buy the car on government loan but can it be said th at the first defendant unconditionally accepted the proposal. It is established that a conditional acceptanc e is no accep tan ce at all - see Halbury's Laws of England Fourt h Edition Volume 9 paragraph 256. loan fo rms, the first defendant signified her acceptance but she qualifi ed her acceptance. She did not promise that she wouJ.d not sell the car if someone brought cash. evidence. She said she only completed the forms on the insistence of the plaintiff. defendant should complete the forms because unl ess that was done the application would not be processed. She ther efore completed the forms without binding herself to sell the car to the plaintiff. It was her evidence that the underst anding was that the p l ainti ff would only get the car if he brought the cheque. As a matter of fact the whol e thing was conditional upon the If for some reason, it was loan application being approved. rejected, the first defendant would not hold the plaintiff in breach. My finding therefore is that there was no binding contract between the parties. It might seem that by completing the It was i mportant that the first I believed her Havi ng found that there was no binding contract, necessary for me to consider whether th ere was br each. action is t h erefo re dismiss e d with costs. it is no t The PRONOUNCED in open Court this 26th day of August, Blantyre. 1994 at ' MKandaw1re JUDGE