Far Distrbution v Malawi Electoral Commission (Civil Cause Number 130 of 2005 ) ((Civil Cause Number 130 of 2005 )) [2005] MWHC 36 (01 January 2005);




CIVIL CASE NO. 130 OF 2005


FAR DISTRIBUTION…….. ……………….…………………………...PLAINTIFF




Anwar Abdulla (appearing in person for the plaintiff firm)


This is a summons for Summary Judgment which falls within the ambit of Order 14 of the Rules of the Supreme Court. The application was supported by the affidavit of Anwar Abdulla who is the owner and Managing Director of Far Distribution.

At the hearing of the application, the plaintiff relied on his affidavit which he read out in court. Apart from the affidavit, the plaintiff also read out, with difficulty, a submission which seemed to have been prepared for him by someone. Indeed for the most part the plaintiff did not know or understand what he was reading out and this in turn made it difficult for the court to appreciate what he was saying. It was thus for this reason that the court decided to ignore the submission and rely on the affidavit that was sworn in support of the application. Indeed, while the court appreciated the fact that a person is entitled to appear in person, it noted that in instances like these it could be prudent for one to seek the services of Counsel.

In his affidavit, Mr. Abdulla stated that the defendant collected from him six motor vehicle tyres and five heavy duty padlocks, whose total value was K247, 725.00. According to the plaintiff, the padlocks were collected on March 25 in 2003 under an LPO number 2225, for the amount of K4500, while the tyres were collected on 19th August 2004 under LPO number 39308, which was for the amount of K243 225.00. The plaintiff further averred that the padlocks were collected by a Mr. Nakukhu while the tyres were collected by a Mr. Hara, both of whom the plaintiff said were employees of the defendant. It was the plaintiff’s submission that the amount of K247 725.00 was never paid by the defendant, hence the basis of this claim.

While there was on the record a defence filed by the defendant, they never appeared at the hearing of this application. This was despite the fact that they had acknowledged service of the summons for Summary Judgment. In their defence, which I had the occasion to go through, the defendant denied owing the plaintiff the sum of K247 725.00. Rather, it was their assertion that the money that is owed to the plaintiff is K218 902. 50, which money was paid into court on account that the plaintiff refused to accept the payment. It was the defendant’s submission that the payment of the K218 902. 50 was a full settlement of the plaintiff’s claim and that they would able to contend this fact during the trial. However, the defendant did not demonstrate how they would be able to contend this fact. Of course one of the obvious ways of doing this would be to provide documentation in form of receipts or invoices issued by the plaintiff showing that he supplied items only worth K218 902. 50. Indeed in this instance it was not mentioned by the defendant whether he is in possession of such documents. It was therefore in the light of this that I did consider whether the defendant had raised sufficient facts and particulars to show that there was a triable issue. This was also in the light of the evidence that the plaintiff adduced at the hearing and also considering that the defendant did not file and affidavit in opposition.

At the same the court was also mindful of the fact that to be entitled to summary judgment under Order 14 of the Rules of the Supreme Court, the plaintiff must prove his/her claim clearly and the defendant must be unable to set a bona fide defence or raise an issue which ought to be tried (see Roberts v Plant [1895] 1 QB 597). Indeed Jessel, M.R did state in Anglo-Italian Bank v Wells [1878] did state as follows:-

“thus where a judge is satisfied that not only is there no defence, but no fairy arguable point on behalf of the defendant, it his duty to give judgment for the plaintiff.”

Having considered what I have said above, it was the observation of the court that in this instance the defendant was not disputing the fact that he owed the plaintiff money. What he disputed was the quantum, which is an issue of fact to be proved by evidence. Now while the plaintiff, in my view, did demonstrate how the defendant is indebted to him by producing documentary evidence, the same was not done by the defendant to back up his assertion that he only owed the plaintiff to the tune of K218, 902. 50. In addition, the court also observed that despite being served with the summons for summary judgment, the defendant never filed an affidavit in opposition, which, among others, one would have expected to contain a statement or paragraph disputing the veracity of the documents that the plaintiff attached to his affidavit in support of this application. The fact that the defendant never filed an affidavit in opposition to this application and also the fact that they do not deny being indebted to the plaintiff, did lead me to conclude that they did not have a defence to this claim. Indeed I do not think that the defendant has demonstrated sufficiently enough that this matter needs to go for a full trial. On the other hand, it is the view of this court that the plaintiff has managed to prove his claim clearly.

Having said this I do proceed to give the plaintiff summary judgment for the sum of K247, 725. 00, plus interest thereon. I do also award the plaintiff the costs of this action.

Made in Chambers this…………….day of………………………………….2005