Njala v Timberland (Civil Case No 614 of 2006) ((Civil Case No 614 of 2006)) [2006] MWHC 45 (01 January 2006);

Share

IN THE HIGH COURT OF MALAWI

LILONGWE DISTRICT REGISTRY

CIVIL CASE NO. 614 OF 2006



BETWEEN

BRIGADIER NJALA……………………….….………………………...PLAINTIFF

-AND-


TIMBERLAND…………………………………………………………DEFENDANT


CORAM: MANDA, SENIOR DEPUTY REGISTRAR

Mapila for the plaintiff

Theu for the defendant (Absent)



RULING


This is a Summons for Summary Judgement which was taken out under Order 14 of the Rules of the Supreme Court. The application was supported by an affidavit sworn by the plaintiff. The hearing of the summons proceeded without counsel for the defendant; this was after the court had waited for 25 minutes for counsel. At the same time, the matter was unopposed, there being no affidavit in opposition.


The simple facts of this case are that sometime in July 2005, the plaintiff delivered to the defendant timber worth K416 760, for which he was paid the sum of K100 000 in cash on or around the 16ht day of December 2005. The plaintiff now sues for the remaining balance of K316 760, interest on the said sum and costs of this action.


Though the defendant never filed an affidavit in opposition, he did file a defence which this court had the occasion to consider. In his defence, the defendant averred that the plaintiff supplied the timbers on his own volition on the understanding that the parties would agree on a contract of sale at a later stage. It was the defendant’s contention that at the time he had no means to buy the timbers as his father was hospitalized outside the country. The defendant then went to state that should this matter go for trial they would contend that the plaintiff’s action was premature as no contract had been agreed upon or executed at all. However, attached to the plaintiff’s affidavit in support of the application for summary judgement is a receipt issued by the defendant to the plaintiff indicating the type of timber the latter supplied its quantity, length and price. The receipt also shows that there was a down payment of K100 000 that was made by the defendant to the plaintiff. In my view this receipt is clear evidence that there was a contract of sale between the parties. I would want to believe that the defendant had the opportunity to reject that goods when they were taken to him but by making a part payment for the goods, the defendant gave an indication that he was prepared to retain the goods supplied. Indeed it is the view of this court that there is no legal justification for the defendant to refuse to pay the plaintiff the balance of K316 760. In other words, the defendant does not have a defence in this matter and as such I do grant the plaintiff summary judgement for the amount claimed plus interest. The plaintiff is also awarded costs of this action.


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











K.T. MANDA

SENIOR DEPUTY REGISTRAR