NBS v Dzinyemba t/a U Service Station (35 of 2015) [2015] MWCommC 459 (10 December 2015);

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IN THE HIGH COURT OF MALAWI

COMMERCIAL DIVISION

BLANTYRE REGISTRY

COMMERCIAL CASE NO. 35 OF 2015

 

BETWEEN:

 

NBS ……………………………………………..…………………………………...PLAINTIFF

-and-

DZINYEMBA t/a U SERVICE STATION...…………..………………………..DEFENDANT

 

 

CORAM

 

HON. JUSTICE RACHEL SOPHIE SIKWESE

Nyanda;                      of Counsel for the Plaintiff

MsNgoma;                  of Counsel for the Defendant

Kachilambe;                Court Interpreter

 

RULING

 

SIKWESE J

 

This is the defendant, Mary Dzinyemba’s application to pay debt by instalments. At the time of this application she owed the plaintiff MK3 349 100-89. It is understood from the plaintiff that interest is still accruing on the unpaid sums. The defendant applied to pay monthly instalments of MK7 500-00. This translates to 446 months to fully liquidate the loan. In support of her application to pay this sum, the defendant submitted that she cannot manage to make any payment more than the MK7 500-00. Her income dwindled substantially after her filling station business collapsed. She has not been able to engage in any profitable business enterprise. Prior to the collapse of the business she was able to service her loan as shown in exhibit MD.

 

She is now working as a volunteer at Commercial Industrial & Allied Workers Union where   she earns a gross salary of K60 239-00 and a housing allowance of K30 119-50.  After factoring in PAYE, her net pay is K70 001-00.  A copy of her current payslip is exhibited as “MD1”.From her monthly earnings she sets aside money for rent, utilities, food, transport and other bare necessities of life.  A copy of her detailed expenses on a monthly basis is exhibited as “MD4”. She has also exhibited receipts and invoices for other expenses. She alleges that every month she is left with a deficit of K19400.00. She avers that she is struggling to make ends meet.

 

The plaintiff opposes the application by alleging that allowing the defendant to pay a monthly instalment of MK7 500-00 would be tantamount to the defendant keeping the money in perpetuity. The plaintiff applied that the defendant must be ordered to pay a monthly instalment of MK126 500-84. The plaintiff did not provide any material to support their application that the defendant should pay MK126 500-84 every month. Just as the defendant was able to show her income and expenses and therefore her financial standing, it was incumbent upon the plaintiff to show the contrary. In other words the plaintiff ought to have shown that the defendant would be capable of paying the MK126 500-84.

 

Analysis and the Law

The sole task of the court in an application to pay a debt by instalments is to balance the interest of the judgment-creditor and his unfettered right to recover the debt at once against a genuine failure or inability to settle the debt at once on the part of the judgment-debtor upon a full factual frank and honest disclosure of the judgment- debtor’s means. A prayer by a judgment debtor for instalments in essence is a prayer for sympathy, see Leasing & Finance Co v Maltraco Ltd [1997]2 MLR250. Since the judgment-debtor is seeking court’s sympathy, s/he must come with clean hands by disclosing all material facts pertaining to his or her means, see generally,Leasing & Finance (supra).

 

On the other hand the judgment-creditor has an obligation to assist the court in verifying whether or not whatever has been disclosed by the judgment-debtor is a full, frank and honest representation of the judgment-debtor’s means, see generally, Mzunga v Kaledzera(2001-2007) MLR (Com series) 202. Where the judgment-creditor fails to challenge the financial position as presented by the judgment-debtor and the court is satisfied that judgment-debtor’s position is accurate, an order should be made allowing the judgment-debtor to pay debt by instalments.

 

The defendant has demonstrated that her financial position is so dire that she cannot liquidate the judgment sum at once.  The inability of the defendant to pay the judgment debt is genuine.  The amount offered is reasonable under the circumstances. The plaintiff has not challenged that assertion with facts. Consequently, the Court allows the application that the defendant pays the judgment debt in monthly instalments of K7 500-00.

 

ORDER

It is ordered that the defendant shall liquidate the debt of MK 3 349 100-89 by monthly payments of MK7 500-00. The first instalment shall be paid on 30 December 2015. It is so ordered.

 

Pronounced in Chambers this 10thday of December 2015 at High Court (Commercial Division) Blantyre.

 

 

Hon. Rachel SophieSikwese

JUDGE