Frank Express Designs & General Dealers v Celtel Malawi Limited (Civil Case No 1197 of 2005) ((Civil Case No 1197 of 2005)) [2006] MWHC 33 (01 January 2006);




CIVIL CASE NO. 1197 OF 2005







Mvalo for the plaintiff

Sentala for plaintiff

Kauka for the defendant

Chulu Court Clerk


This is an application for Summary Judgment brought under Order 14 of the Rules of the Supreme Court. The summons is supported by an affidavit sworn by Mr. Titus Mvalo, who appears for the plaintiff.

The brief background of this case is that the plaintiff is a painter and a sign-writer who was contracted by the defendant to paint various sites including buildings, walls or structures recommended by the defendant at an agreed cost of K350 per square metre. Between August and September 2005 the plaintiff submitted two invoices, one for K350 000, which was honoured and one for K1, 415, 750, which was not honoured. On account that the second invoice was apparently not honoured, the plaintiff filed a writ of summons (with a statement of claim attached) on 8th December 2005 claiming for K1, 415, 750, damages for loss of business, collection charges of K141, 575 and an order that the defendant does verify the additional 1300 square metres of work allegedly done by the plaintiff and further that the defendant should make the necessary payment for the work. The plaintiff also claimed the costs of the action.

The writ was duly acknowledged by the defendant, who also filed a defence which was basically that the plaintiff’s claim was premature as they had 30 days within which to effect payment in respect of the latter invoice that the plaintiff had submitted to them. It was also the defendant’s defence that contrary to what the plaintiff was asserting that he submitted the invoice in September 2005, the invoice was submitted on 5th December 2005. In response to this defence the plaintiff went ahead and filed a summons for summary judgement on the grounds that the defence was not denying liability. It was also the plaintiff’s view that the assertion by the defendant that the claim was premature was baseless because it was not supported by the provisions of a purported contract between the parties. This contract was exhibited in the affidavit and it was noted that the same was only signed by the plaintiff, hence the reason why I am referring to it as a purported contract.

During the hearing of the summons the court was informed that the defendant had since effected payment through a cheque that was apparently drawn in December 2005. In his submission, counsel for the plaintiff also took issue with the fact that the cheque was drawn in December 2005 but was only given to his client a day before the hearing of the summons. Suffice to say however that this payment having been made, the only issues that remained for my determination were as regards costs and this order that the plaintiff was asking of the court.

In my ruling I will first direct my attention to the order that the plaintiff was asking this court to pronounce. Firstly, I did note that counsel did not state the authority under which he was asking this court to make the order. Secondly, it was the view of this court that I do not have the jurisdiction to pronounce such an order considering that it will be requiring specific performance. Indeed if that is the kind of relief that is being sought by the plaintiff then I would have thought that the best approach would have been to file an originating motion. In any case there is nothing in the exhibited contract which places a duty on Celtel to conduct such verification. In view of all this then I do decline to issue that order and dismiss “the claim” if I can call it that.

Having declined to grant the order sought by the plaintiff I will now direct my attention to the issue of costs. It is agreed that costs do indeed follow the event. At the same time it should be borne in mind that costs are at the discretion of the court, a point which is made quite clear in S.30 of the Courts Act, (see also Aiden Shipping Ltd v Interbulk Ltd [1986] A.C. 965). It is also generally accepted that costs are normally awarded to the successful party. However there are occasions where the successful party has been denied costs (see Hampton v Herkes 1961-63 ALR Mal.373).

In this instance it was the defendant’s observation that in talking about costs in this instance we should distinguish between costs and collection charges, to which I entirely agree. Indeed it has become settled law that since the decision in the Kankhwangwa v Import and Export case, collection costs are not recoverable after the commencement of a case. In this regard then the plaintiff’s application for summary judgement, in as far as collection costs were concerned would have failed. as for the costs of this action, it is the order of this court that each party should pay their own costs because whilst appreciating the fact that there might have been a delay in payment, which gave the plaintiff the right to bring an action against the defendant, it is also noted that the defendant never refused to honour the payment to the plaintiff. Indeed it is my considered view that this matter would have been resolved by other cheaper means as opposed to a court action, this is especially considering the fact that the tow parties are still doing business and that the other payments had been honoured by the defendant. In view of this then it is my ruling that the plaintiff’s prayer for costs fails.

Made in Chambers this………day of………………………………………..2006.