THE HIGH COURT OF MALAWI
CASE NO. 286 OF 2003
BANK OF MALAWI
SENIOR DEPUTY REGISTRAR
for defendant (absent)
is a summons taken out by the plaintiff for summary possession of
land which has been taken out under Order 113 rule 2 of the
the Supreme Court. The summons was supported by an affidavit and
counsel for the plaintiff did also file skeleton arguments,
have had the occasion to go through.
substance of the application is that the plaintiff seeks to take
possession of plot number 18/5/1135, situate at Area 18. The
plot was purchased by the defendant using funds from a loan under the
plaintiffs housing scheme. At the material time,
the defendant was
employed as a bank clerk until he voluntarily resigned on the 16th
day of September, 2005. At the time of his resignation the total loan
that had been advanced to the defendant was K1, 524,023.13,
according to Clause 5 the housing loan scheme, administered by the
plaintiff (and which the plaintiff had agreed to by signing
agreement marked MK1), became repayable upon resignation.
Indeed by signing the agreement, the defendant had further undertaken
to allow the plaintiff to sell the property should he fail to settle
the outstanding amount in full. Indeed it is on the basis
defendant has failed to repay the amount in full that the plaintiff
brings this summons.
summons was opposed by the defendant on account that he has shown
interest to repay the loan albeit by installments. In fact
defendant did outline in his affidavit how he intended to pay the
installments. I do not intend to go into details as to the
installments, suffice to say that whatever proposals the plaintiff
was making at that point were subject to the agreement
that he had
signed undertaking to pay the amount in full should he resign from
the Bank. Further since the proposals were going
to change the
original agreement between the parties, I would think that it was
within the plaintiffs right to accept or deny
considering that this was in essence a commercial agreement.
having gone through this case, it is noted that it is not being
disputed that the plaintiff gave a loan to the defendant.
It is also
not being disputed that the loan become repayable in full when the
defendant resigned and that this has not happened.
Apart from that
it is quite clear to me that having facilitated the loan, the
plaintiff has an interest in the land and the house
thereon (see Reserve
Bank of Malawi v Lonely Kalindangoma
Civil Cause No. 363 of 1997 (unreported)). Further, since the
defendant has not repaid the loan as agreed, the plaintiff was quite
entitled to take up these proceedings and (from my assessment of the
facts), also entitled to take possession of the land.
found this, I proceed to order that the plaintiff should take
possession of this land/house within sixty days from the date
ruling. The plaintiff is also awarded costs of these proceedings.
in Chambers this