Court name
High Court General Division
Case number
31 of 2006

Kapelemera & Anor. v Banda (31 of 2006) [2008] MWHC 125 (18 June 2008);

Law report citations
Media neutral citation
[2008] MWHC 125

IN
THE HIGH COURT OF MALAWI


LILONGWE
DISTRICT REGISTRY


CIVIL
APPEAL NO. 31 OF 2006





BETWEEN





J.M.
KAPELEMERA ……………………………………………………………………..
1
ST
APPELLANT


F.
WHAYO ……………………………………………………………………………..
2
ND
APPELLANT





AND





CHIDZIWENI
BANDA …………………………………………………………………
RESPONDENT








CORAM : CHOMBO,
J.





: 1st
Appellant – unrepresented – Absent


: 2nd
Appellant – unrepresented – Present


: Respondent
– unrepresented – Present


: Kabaghe,
Court Reporter


: Njirayafa,
Court Interpreter





JUDGMENT





The
2
nd appellant
informed the Court that his colleague the 1st appellant was sick and
unable to report to Court. However, he asked Court
to proceed in the
absence of the 1
st
appellant.





The
appeal arises out of dissatisfaction with the order of the lower
court that the 1
st
appellant should pay K16,865.00 and 2
nd
appellant K14,640.00 by instalments of K5,000.00 effective 30 March
2006, to satisfy an outstanding debt with the respondent.





In
their grounds of appeal the appellants state that:







  1. since the Court ruled that the respondent should be
    compensated for transport money, accommodation and food for the
    times that
    he travelled to Dedza to collect his money that they had
    borrowed who would compensate them for the time they took from work

    to attend court proceedings.









  1. that the Court had demanded for receipts of the
    expenses of Mr. Banda but there were never brought yet the Court
    believed that
    he spent the sums of monies that he had claimed but
    did not believe their evidence, documentary evidence about the sums
    of money
    still owing to the respondent.









  1. that there was “cutex” used on the summons to 1st
    appellant to alter the sum of money in dispute resulting in the same
    summons having two different sums of money being claimed.









  1. that the respondent did not produce his business
    license for doing katapila.









  1. the appellants queried why the Court had decided to
    divide in two the money that the respondent was claiming, when they
    had already
    paid the monies that they had borrowed from the
    respondent in January and not March 2005; and how could the
    respondent loan them
    money when he was dismissed from work.









  1. the appellants query why the court, upon finding then
    liable did not give them an opportunity to state how much they would
    be
    able to pay rather than imposing punitive installments.







The
appellant’s grounds of appeal are in English, but without looking
down upon the appellants, it would have served the court
better if
these had been in Chichewa a language that they are more comfortable
with; and this is acceptable by courts. The court
tried as best as
it could to extrapolate the grounds of appeal from what the
appellants had put down in English.





In
response, the respondent stated that he had told the court and the
appellants that he could not produce receipts for his travels
because
he uses bicycle and matola from Mitundu to Dedza so he does not have
receipts. The respondent submitted that he spent
a lot of money
coming to Dedza to collect his money and yet each time he travelled
it was with the sanction of the appellants.
Only after arriving in
Dedza he would be told that there was no money for him. After a
number of fruitless trips to Dedza he
told the appellants that he was
going to sue them for the transport money. In May 2005 the 2
nd
appellant paid K3,500.00 through the respondent’s witness, PW2, but
he did not accept the money because the respondent had instructed
him
to receive the full amount or nothing. In June and July the
respondent went to see the appellants for the money but he came
back
with empty hands after the two failed to pay him as earlier promised.
In August and September the respondent again made fruitless
trips to
Dedza in an attempt to collect his money. He was given K1,000.00 as
refund for transport and told that the full sums
would be paid in
October 2005. When he came in October, however he was only given
K3,500 as refund for expenses. Each trip to
Dedza in a bid to
collect his money took up to 2 weeks and all that time he was in rest
houses and incurred expenses in food and
accommodation. PW2, Mr.
Chisale, had evidence that did not differ from that of the
respondent, then the complainant in the lower
court.





The
two appellants did not dispute the evidence of the respondent and his
witness in the lower court and they actually confirmed
that the
respondent did make the trips in question. They did also admit that
before making each trip the respondent would phone
to find out if the
money was ready. Upon assurance from the two appellants the
respondent would travel only to be told whilst
already in Dedza that
there was no money. The appellants also knew that they knew that the
respondent used to travel from Lilongwe
in all the trips that he was
making.





In
their appeal the appellants are asking who will compensate them for
the times that they came to Court. The appellants have not,
apart
from asking that question, stated what losses they incurred as a
result of attending court. But, even if they had stated
the losses
it would be difficult, for the Court to answer that question. It
should be understood that they, after they failed
to repay the money
as promised, and kept telling the respondent to come to Dedza to
collect his money, and fail to pay him each
time he came, makes them
liable for those expenses that the respondent suffered. If they had
paid the money, or told the respondent
not to come to Dedza until the
money was ready, they would not have been responsible for those
fruitless trips. The fact that
they lost time from work has nothing
to do with the respondent because they are the ones that were at
fault. If they had paid
the money as promised it would not have been
necessary for the respondent to go to court and sue them.





The
appellants are questioning the court’s decision to believe the
respondent in the absence of receipts when the same court does
not
want to believe them about when they took the money and when payments
were made. The evidence on record, in my view, should
play a big
role to inform the appellants why the lower court arrived at the
particular determination that it made. The appellants
admitted
taking the money from the respondents at an interest of 30% and that
the money was to be paid in full by 31 March 2005.
After the
respondent gave his evidence in the lower court the appellants did
not question the respondent and his witness on the
evidence that he
had given, save a few questions about the exact amount of money taken
from the respondent and where this money
exchanged hands. This then
leaves almost all the evidence of the respondent, then the
complainant, and PW2 undisputed and thus
the court believed the
evidence of the complainant and his witness.





The
appellants further submit that it would seem that the intention of
the court is to punish them by not asking them whether they
can
manage to pay K5,000.00 per month; instead the Court just imposed the
mode of payment on them. The appellants had a right
to tell Court
how much they could manage per month paying back on the debt. On
appeal then that should have been one of the points
that they raised.
When Mr Whayo, the 2
nd
appellant was asked if there was anything additional that he wanted
to state to Court in addition to the written grounds of appeal
he
said that there was nothing. The Court can not therefore be blamed
for not giving the appellant an opportunity to state what
he calls
“mitigation”





The
appellants also questioned how it was possible that the respondent
could have loaned them money when he was actually dismissed.
Well,
the Court may not be in a position to state how this happened, but
there is evidence to the effect that the respondent was
employed, no
doubt getting money from his employment, and he had a timber business
as well. It is not known whether the money
came from his employment
or the timber business, suffice to say that the appellants on their
own volition borrowed money from the
respondent. Did the respondent
have a business license for his “katapila” business? That has
not been established, nor did
the appellants question that or demand
for the license before getting the money from the respondent. They
should have found out
that at the point of getting the money, if it
was that important to them. But, they can not now turn around and
say they can not
pay back the money because the respondent did not or
does not have a “katapila” license. When they went to get the
money the
respondent laid down his terms – that there would be
interest at 30% and the appellants agreed with the terms, and got the
money,
so they became bound. They must therefore pay back the money
according to the terms that they agreed upon.





At
the end of the day, the Court must determine what monies the
appellants still owe the respondent and how the same is to be paid.

The question to determine is whether the money was paid, either in
full or in part as claimed by the appellants, or not paid as

submitted by the respondent.





According
to the evidence on record, the 1
st
appellant got K10,000 from the respondent and was to pay back K13,000
after 30% interest. The 2
nd
appellant got K12,000 and was to pay back K15,000 at the end of the
second month. According to the two appellant they got the
money in
January 2005 and not March 2005 and they were supposed to pay back
the full sums in February 2005. The 1
st
appellant testified that he made several payments totaling to K9,000
leaving a balance, according to him of K1,000. The 1
st
appellant does not state what happened to the agreement to pay
K13,000. According to the terms of the agreement, the 1
st
appellant still owes the respondent K4,000.





The
2
nd appellant in
his evidence, testified that he paid K2,000 in February, then K4,000
in April then K500 in May then another K4,000
in October and K3,000
in November and K2,000 in December, and, according to the 2
nd
appellant, leaving a balance of K2,180. If indeed these figures are
correct, as the 2
nd
appellant stated in his evidence that he was supposed to pay back
K15,000 but when these figures are added up they come to K17,680.
If
the 2
nd appellant
still has a balance of K2,180 to pay, how does he account for the
difference in the final sum to be paid. Should it
be assumed that he
did not pay the sums of money as enumerated to Court? He states that
there is still a balance of K2,180, and
I will accept his evidence as
to the unpaid balance.





The
two appellants admitted that the respondent used to travel from
Lilongwe, Mitundu to Dedza to ask for his money and this money
was
never paid back. The lower court calculated the sums of money
involved and divided the total sum in two so that each appellant

should bear some responsibility. This was justifiable because every
time the respondent travelled to Dedza it was with the sanction
of
the two appellants. The evidence on record is that each trip used to
cost K940 and there were 10 trips. The respondent testified
that he
used to travel by bicycle and matola where no receipts are issued.
The total in transport cost was therefore K9,400.
The respondent
showed, but no receipts were submitted that he used to put up in rest
houses and incurred food expenses. It was
his submission that at one
time he stayed for up to two weeks waiting for his money. There was
however no breakdown of the actual
costs of the room, food etc and it
would be difficult to accept the respondent’s evidence that he used
to spend the sum of K2,500.
The Court will exercise discretion to
award the respondent some refund on the accommodation and food
expenses but not in full.
This was more than 3 years ago and there
is no way of finding out what the costs are presently. I would say
that a sum of K600
per trip would be reasonable. The respondent must
therefore be refunded the sum of K6,000. The total in refunds for
the respondent
for transport and accommodation is K15,400. As noted
by the lower court this sum of money represents the costs that the
respondent
incurred to travel to Dedza to collect the money from the
two appellants. This is why the lower court divided the costs in two

so that each appellant takes responsibility. The sum of K15,400
divided by two therefore gives us K7,700 each. In addition, the
1st
appellant stated that he had only paid K9,000 – leaving a balance
of K4,000. This means that the 1
st
appellant will pay the K7,700 plus the K4,000 as balance. This gives
the total as K11,700. As for the 2
nd
appellant it will be K7,700 and the balance of K2,180 making a total
of K9,880.





Ordinarily
interest on the unpaid balances would have been allowed. However, it
is in evidence that the respondent had agreed to
waive interest on
the said sums of money after the first month of the two appellants
failing to pay the full sum. It is therefore
ordered that the said
sums of money will be without interest. However, since the balances
on the principle sum of money and the
transport costs have been
outstanding for a long time it is ordered that the sums of K11,700
and K9,880 be paid as follows with
effect from 31
st
May 2008:





K1,950
per month for 6 months (up to 30
th
November 2008) for the 1
st
appellant and for the second appellant, with effect from 31
st
May 2008:


K1,647.00
per month for 6 months (up to 30
th
November 2008.





As
three years has already elapsed from the time that the appellants
should have paid off the sums of money owing, and after the

respondent had told them he would sue them for his transport and
accommodation costs, I order that the said sums be paid as
calculated.
In the event of failure to do so, on the application of
the respondent, the court will impose interest on whatever balance
will
be outstanding at the date of default to pay.





It
must be understood that the duty of the court is to interpret the
agreement between the parties and see the best way of achieving

justice.





MADE
in Court this 19th
June 2008.














E.J.
Chombo


J
U D G E

















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