Nsambo v Ng'oma (Civil Cause No.10 of 2004) ((Civil Cause No.10 of 2004)) [2005] MWHC 89 (01 September 2005);

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IN THE HIGH COURT OF MALAWI

LILONGWE DISTRICT REGISTRY

CIVIL CAUSE No.10 OF 2004

BETWEEN

LT. COL. FRED NSAMBO ……...….……………………………………... PLAINTIFF

AND

K.Z.R. NG’OMA ………………………………………………...……….. DEFENDNAT


Coram: Ligowe: Assistant Registrar

Mapila : Counsel for the plaintiff

RULING

The plaintiff claims interest on 5 000 South African Rands at the commercial rate or such rate as the court may deem fit plus costs of the action. The facts as pleaded are that the plaintiff a soldier and businessman lent ZAR5 000 to the plaintiff another businessman on or about 16th April 1993. The defendant repaid on 27th March 2002 after several efforts by the plaintiff through his legal practitioners. The plaintiff further pleads that the defendant knew or ought to have known that the plaintiff was a business person and needed to put the money advanced to him to proper commercial use for which he was unreasonably and unjustifiably deprived.


This is the plaintiff’s application for summary judgment under Order 14 of the Rules of the Supreme Court. The affidavit in support confirms the facts in the statement of claim. That the defendant’s defence to the claim is a sham. Then deponent George Desiderio Liwimbi believes the defendant is justly indebted to the plaintiff.


The affidavit it in opposition states that the defendant’s defence is that the transaction between the plaintiff and the defendant was not a commercial one. There was no express or implied agreement as to the repayment date of the debt nor indeed was there an agreement as to interest.


All conditions precedent for an application under Order 14 have been met by the plaintiff. The defendant has shown cause why the application should not be granted. That the transaction between the plaintiff and the defendant was not a commercial one and that there was no express or implied agreement as to the repayment date of the debt nor indeed was there an agreement as to interest are issues in dispute which ought to be tried. It is therefore not proper in this case to enter summary judgment.


The application is dismissed. Costs will be in the cause.


Made in chambers this ………. Day of September 2005.





T.R. Ligowe

ASSISTANT REGISTRAR