IN THE HIGH COURT OF MALAWI
PRINCIPAL REGISTRY
BETWEEN:
BESTOBELL
(MW) LIMITED………………………….PLAINTIFF
AND
SHIRE
LIMITED…………………………….…………….DEFENDANT
CORAM : TEMBO,
ASSISTANT REGISTRAR
Chirwa,
Counsel for the Plaintiff
Kauka, Counsel for the
defendant
The
plaintiff wrote demand letters to the defendant in September 2002 demanding the sums claimed herein of
K35,808.26, statutory legal collection charges thereon of K5,371.24 plus costs
of this action. In January 2003,
the defendant paid the sum of claimed
of K35,808.26 principal debt leaving out the collection charges and costs
claimed herein.
Thereafter
the plaintiff on 6th may, 2003 commenced the instant action by a
writ of summons claiming the same sum of K35,808.26 that had already been
paid. And the defendant prays that this
action be dismissed for being frivolous, vexatious and an abuse of the court
process. The defendant also asserts
that according to the amendment to the Legal Education and Legal Practitioners
Act on legal collection charges such legal collection charges ought to be
collected from the plaintiff.
The
plaintiff though insisted that it is entitled to costs and statutory legal collection costs since the claimed
herein was paid upon the demand for the same by the plaintiff. And the plaintiff further seeks this court’s
order amending its writ of summons to reflect that the only claim is for costs
and legal collection costs. The
defendant takes the contrary view namely, that such an application ought
propery to be made on a summons in terms of Order 20 r 5 Rules of Supreme Court since pleadings are
deemed closed now.
The words
frivolous and vexatious are meant for
cases that are obviously unsustainable see Lindley L.J. in ‘Att. –
Gen. Of Duchy of Lancaster v L & N.W ‘Ry’ [1892] 3 Ch 274 at 277.’
The
question for this court is therefore, is the plaintiffs’ action obviously
unsustainable? In the circumstances of
this case this court of the view that
the answer to the consideration ought to be in the affirmative for the
following reasons.
Firstly,
the principal sum claimed was already paid by the date of commencement of the
instant action.
Secondly,
following on the first ground the plaintiff is not entitled to costs of this
action as claimed herein.
Third,
and lastly, the plaintiff is not entitled to statutory legal collection costs
in terms of the current law on such costs as contained in the relevant part of
the legal Education and Legal Practitioners Act.
Since the
plaintiff’s action is vexatious and an abuse of the court process it is struck
out with costs to the defendant to be taxed if not agreed. This court feels that it can not consider
the plaintiff’s application to amend its writ of summons in the circumstances.
Made in Chambers
at Blantyre this ……….. day of February, 2004.