Valbar Limited t/a Honda Centre v Osman (Civil Cause 126 of 1987) [1991] MWHC 13 (18 February 1991)

IN 'lliE HIGl COURT OF MALAWI ~-~ PRINCIPAL REGISTRY . ,:.· ;";·~-~,t ....... ...,<,,, ·"'··, -, . . .. \ J(IN. J.9-9/ -,,<,.,., \) CIVIL CAUSE 00. 126 OF 1987 . . i.1 ------J . ·~t~: -------;/ ·~ ..... ;;;;;:;.;.:;.:'.;;..-. .-.:~;-;..'.:,..,> VAI. BAR LIMI'IED t/a HONDA CENTRE •••••••••••••••• PLAim'IFF -AND -F o OSMAN • o • ., • o • o • it • o ♦ e o • • • • • • • • • o • • ♦ o • • o • o o • • • • DEf'EtIDAN'I' Coram: MKANDAWIRE f JO Osman of Counsel for the ~laintiff Msaka of Counsel for the Defendant Manondo (Mrs), Court Clerk Gausi (Mrs} , Court Reporter JUDGMENT The plaintiff's action against the defendant is for the sum of K2,725.41, representing the price of goods and services rendered Joetween 23rd May, 1983, and 20th February, 1984. There is also a claim for K2,000.00, being money advanced on or about the 20th day of May, 1983, by the plaintiff to the defendant at the latter's request. The plaintiff therefore claims a total of K4,725.41 and it is stated in the statement of claim that particulars of these claims were already known by the defend.ant. In his defence, the defendant denies to have lxnqht any goods from the plaintiff and it is also denied that the plaintiff had rendered any services to the defendant during the pericxl mentioned or at all • The defendant further denies to have been _ advanced the sum of K2,000.00 or at all by the plaintiff. The defendant was not ?resent at the hearing. I shall briefly explain what happened . Up to the date of hearing the defend ant was represented by Messrs ! avjani & Co. When this case was set down for hearing, Mr. Msaka ha :l sent a letter to the defend.ant, advising him of the date of he~ring. In that letter Mr. Msaka also reminded the defendant to pay \ deposit of I<l,000 .00 towards the costs of the action. As a matter of fact, several letters had been written about the costs and Mr. Msaka rade it quite clear in his last letter that if the costs were not pa l<" , Messrs Savjani & Co. would cease acting for him. Upon getting 10 response, Mr. Ms aka had filed a sunurons praying that M~srs s ,vjani & Coo be ~ischarged from acting far the defendant as ha was b ~ing unco-ope:rat:1 ve. Mr • Osman then submitted that if Messr13 Savj mi and C~y were discharged, the plaintiff was prepare:l to pr~=eed with its cru,e. 2/ ........ . -2 -on the basis of what Mr • Msaka sul:>mitt.oo I agreed that the defendant was indee:i unco-operative. He wants to get legal service for nothing. That cannot be. I therefore order that Messrs Savjani & Co. .be discharged from acting for him. I was further satisfied that the defendant was well aware of the date of hearing. He deliberately stayed away in an attempt, I think, to frustrate the course of justice. Int~ cir"™t:-nces, I ordere::1 that the plain t:1. U .c,1~ F~ -wit:il its case. After all if the defend.ant is.~ satisfioo, he can always apply to h.c:we 'the j~ . .aei: aside. · The first witness for the plaintiff was Mr. I . A. Osman. He is a Chartered Accountant by profession and he is the General Manag~ of Honda Centre. He joined Honda Centre in April, 1987, bu: previowJ.l!f he was working for Coopers & Lybrand. In his capacity .as. C-eneral Manager of Honda Centre he came across the account of F. s. Osman, the defendant . The defendant did not work for Honda Centre, but he worked for Mobile Motors Limitoo. At that time, Mr. Stephens was the Managing Ili.r.. Q,Ct;C).r .t:m-Mobil.e Moeao.. t..imi:1:.tl .acd ~ -CGneral Manager was Mr • Isaacson. These two gentlemen had some business -cormection with Valbar Limited which trades as Honda Centre. So there was a loose COffllQCtian between Valbar Limited and Mobile Motors Limited...aQd .so tha..dafendant. usoo to introduce some customers to• Hooda Centre. Mr. I. A. Osman testified that on 20th May, 1983, the plaintiff loaned a sum of K2, 000 .00 to the defendant. To this effect, he .prodncrad .a paid-up cheque No. 150519 dated 20th May, 1983, drawn by 'the plaintiff and payable to the defendant • It was Mr • ~ s. Q .. ; ~ that the defendant "has not yet repaid the loan .acd il is. s-till out standing. Mr . Osman further ~fiGd .th.at on 13rd May, 1983, the de£erldaQ.t bought .on cr~i t .from the plaintiff a Honda Water Pump at a price of Kl, 323 .00. There was tendered an invoice No. 1789' dated' 23rd 'May, 1983. The said sum of Kl, 323 .. 00 .st.il1 remad o_. unp<Ud. Then on 12th July, 1983, the defendant, again on credit, bought from the plaintiff a used Honda Motor Cycle at a price of KSOO .00. Invoice No. 1822 dated 12th July, 1983, was tendered as evidence of the transac tion. The Motor Cycle remains unpaid for uQ to date. After purchasing the Motor Cycle, the defendant took it to tae plaintiff's garage on five occasions for repairs. The total repair cn~ges for the five occasions came to K902 .41 and this amount was not pai<t. Job Card Numbers 8071, 8152, 8196, 7319 and 8394 wete tendered in evidence. The total indebted ness of the defendant came t<) K4, 725.41 and it was Mr. Osman's testimony that this sum remains unpaid up to date despite several demands. There was tendered a letter of final demand dated 12th September, 1986, and this was sent by registered post. The actual debt was K4, 779.03 and this is what is shown in the final demand letter, but Invoice No. 8458 for K53.62 could not be traced and that is why the claim is in the sum of K4, 725.41. · Mr. Alfred Mbendera, who was the Foreman. for Motor Cycles, testifioo that from ti~ to time the defendant used to take his moto:c cycle to Honda Centre for repai~ • At that time the Gener.al Manager was Mr • Peter Chevy. Such was the plaintiff• ~ case. The evidence is simple and straightforward. It i:, evident that a sum of K2,000 .00 was indeed loane:l to the defendant. The oraly defence to such a claim would be that the money was repaid • I have no reason to doubt Mr • Osman' s evidence that the money remains a.mpaid. Again, the purchases ·of the 3/o••••••• -3 -water pump and motor cycle, as well as the repair charges, appear to be clear • I have all reason to believe that all these debts were indeed incurred by the defendant and that they remain unpaid. The plaintiff has therefore proved its case and so I enter ju::igement against the defendant in the sum of K4, 725 .41. The defendant is condemned in costs. PRONOUNCED in open Court this 18th day of February, 1991, at Blantyre • • . J