Court name
High Court General Division
Case number
1146 of 2005
Case name
Eke t/a ND Ventures v SS Rent-a-car
Law report citations
Media neutral citation
[2006] MWHC 118
Judge
Null






IN
THE HIGH COURT OF MALAW
I


LILONGWE
DISTRICT REGISTRY


CIVIL
CASE NO. 1146 OF 2005





BETWEEN:


B.
EKE t/a


N.D. VENTURES………………………………………APPLICANT


AND


S.S.
RENT A CAR………………………………….RESPONDENT





CORAM: CHOMBO,
J


Khonyongwa,
Counsel for Applicant


Kadzakumanja,
Counsel for the Respondent


Chulu,
Court Interpreter





R U L I N G




The applicant, a judgment debtor for the sum of
K654,733.87, applied to court to pay debt by instalment. The
respondent’s counsel
had indicated after service, that he intended
to cross-examine the applicant on same issues. The applicant was
duly informed of
the respondent’s counsel’s desires. However he
left for UK promising to be back for the same. On the day of hearing
the application,
the applicant did not see it fit to present himself
to court as requested. Applicant’s counsel asked for adjournment
to enable
his client be present for the matter.





The
adjournment sought was vehemently objected to by the respondent’s
counsel on the bases:







  1. that the
    affidavit evidence of certain figures was not substantiated with the
    necessary documents therefore the application was
    floored with
    irregularities.









  1. the case has
    taken long time and that applicant absented himself as a ploy to buy
    more time.







However, he prayed
that should court find it necessary to grant the adjournment sought
then it should be on condition that the applicant
pays a minimum of
K100,000. Counsel for the applicant admitted that the affidavit did
not disclose all relevant facts but was hopeful
that such facts would
come to light during cross examination of his client. With due
respect the court does not subscribe to this
position. Counsel cannot
rely on the fact that errors in his affidavit would be rectified by
the process of cross - examination.
Affidavits are supposed to be
correct at inception. The affidavit should have been supported with
the necessary documentary evidence
to make it worth its name.





The
applicant was informed and was well aware of the requirement of the
respondent long before he left the country. He actually
made an
undertaking that he would be available for the hearing of the
application but failed to turn up. I have no doubt that he
has his
lawyer’s details and could have taken the trouble to phone and let
his lawyer know that he would not be available. This
would, no
doubt, have given his lawyer an opportunity to seek for an
adjournment long before the case came to court. In the alternative

the application could have made arrangements for another officer in
the company to take up the matter on his behalf. This reflects
a
lack of seriousness in my view and do not see any justification to
adjourn the matter to another day. There was a consent order
entered
on 16th
June 2006 and one of the conditions in paragraph 6 was that the
defendant (now applicant) would settle the said sum of money by

monthly instalments. To date no payment has been made. Rather than
meet his financial obligations at home the applicant travelled

abroad. I must disallow the application and dismiss it with costs.






MADE
in Chambers this 21
st
September 2006.








E.J.
Chombo


JUDGE