Alliance One Tobacco (MW) Ltd v Greenlands Ltd (Commercial Case No. 207 of 2010) [2016] MWCommC 504 (14 December 2016);

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IN THE HIGH COURT OF MALAWI

COMMERCIAL DIVISION

BLANTYRE REGISTRY

COMMERCIAL CASE NO. 207 OF 2010

 

BETWEEN:

ALLIANCE ONE TOBACCO (MW) LTD……………………………..............PLAINTIFF

-and-

GREENLANDS LTD…………………………………………………………....DEFENDANT

 

CORAM

HON. RACHEL SOPHIE SIKWESE

Njobvu; of Counsel for the plaintiff

Kara; of Counsel for the defendant

Kachilambe; Court Interpreter

 

RULING ON APPLICATION FOR SUMMARY JUDGMENT

Sikwese J

Background

This is the plaintiff s application for summary judgment brought under Order 7 rules 1 and 2 of the High Court (Commercial Division) Rules, 2007. The application is primarily premised on the plaintiff s belief that they have a clear case against the defendant for which the defendant has no defence or that the defence that the defendant has advanced is a sham as it raises no issues. The defendant vehemently opposed the application. They averred that there are issues in the matter that must be subjected to full trial.

The action arose from several financing agreements whereby the plaintiff claims to have advanced sums of money totaling US$875 636-46 plus interest to the defendant. The defendant neglected to pay back the money in accordance with the terms and conditions of the agreements.

The Law-

Maranatha International Academy v Petroda (MWJ Ltd [MSCA Civil Appeal 2/2014 Qudgment delivered on 17 December 2015 (unreported).

The parties were summoned for oral submissions to supplement their affidavits and skeleton arguments. After hearing the parties and reading through their affidavits and skeleton arguments the Court drew their attention to the recent Supreme Court of Appeal (the Court) decision, in Maranatha, on this question especially on interpretation of the provision the basis of the application. The Court had the benefit of considering the arguments of Counsel on the position of the Court through their concluding written submissions.

In its opening paragraph the Court said;

" Summary judgments are summary but not as summary as we, sometimes, regard them... The normal way of achieving justice, where there is possible contestation, is by trial where all evidence, oral or otherwise, arrives, through the industry and sophistry of Counsel, before a trial of fact and subjected, again with the labour and advice of Counsel, to legal argument and reasoning before a judge of law. Summary judgment jurisdiction recognizes that, for reasons of economy and justice, trial is seldom the way to go. In judicial pronouncements and rules of court, the right to and need for trial have been, in formulating summary justice principles, a balance of justice and ensuring that in right circumstances a claimant should receive judgment or the defendant afforded a trial".

Summary judgment is the exception to disposal of disputes. This seems to be the starting point when faced with an application such as the present one. In their submissions Counsel addressed the points raised by the Court and went further to argue in favour of their respective positions. This Court considered that the defendant has merit in insisting that they should be given an opportunity to argue their case at a full trial. This is because as summarized by Counsel for the defendant, the affidavit in opposition raises issues that would ordinarily require this Court to go through a number of documents including correspondence between the parties or parties connected with the case. For instance, the affidavit refers to two communications between the plaintiff and the bank in relation to interest and sequence of repayment, respectively. The defendant should be allowed to adduce evidence at trial to support his case that based on the correspondence he was not obliged to pay interest or the interest claimed by the defendant and that repayment of the loan was subject to certain conditions. To ask this Court to consider the contracts to the exclusion of all other correspondence and make a decision without hearing the defendant would lead to injustice.

The Court is very instructive in the manner that courts should consider summary judgment applications. It is not only for the plaintiff to make a clear case in his pleadings. It must be shown that the defendant raises no issue, question or dispute which ought to be tried. If the court finds that there is some other reason for trial it would be unjust to prevent a defendant from trial. In this case the defendant has shown that there are a number of issues that can only be settled through trial. Any attempt to dispose the matter without affording the defendant that opportunity would lead to a miscarriage of justice. The application is dismissed with costs. The matter shall proceed to mediation on the 21st day of March 2017 at 10.30 in the forenoon.

Pronounced in Chambers this 14th day of December 2016 at High Court (Commercial Division) Blantyre.

____________________

Rachel Sophie Sikwese

JUDGE