IN THE HIGH COURT OF MALAWI
CIVIL CAUSE NO. 3576 OF 2002
HON. L. PATEL ……………………………………………………………PLAINTIFF
HON. G. MLOMBE ……………………………………………………… PLAINTIFF
CORAM: M. A. TEMBO, ASSISTANT REGISTRAR
Tembenu, Counsel for the Plaintiff
Banda, Counsel for the Defendant
The plaintiff herein commenced this action claiming the sum of K750,000.00 being the sum due and owing from the defendant to the plaintiff on the sale by the plaintiff to the defendant of a motor vehicle herein plus interest thereon . Both Counsel for the parties [agreed that a sum of K100,000.00 had been paid by the defendant herein towards the liquidation of the judgment debt herein leaving a balance of K650,000.00.
The court consequently entered judgment herein in favour of the plaintiff for the sum of K650.000.00.
The court was informed that the defendant made further attempts at liquidating the debt herein by issuing cheques to the plaintiff which upon presentation to the defendant’s bankers were returned marked `return to drawer`.
Mr Tembenu argued that since cheques are bills of exchange interest is chargeable thereon if the cheques are rejected on presentation. Counsel cited S. 51 of the Bills of Exchange Act in support of his contention.
Mr Tembenu then prayed to the court to award interest to the plaintiff on the calculations purportedly set out in the plaintiff’s affidavit. The court hastens to note that in fact the calculations of interest alluded to by Counsel for the plaintiff were not contained in the plaintiff’s affidavit as alleged. In reply Mr Banda for the defendant argued that the present action was on an agreement for sale and not the Bill’s of Exchange Act or for the dishonoured cheques. And that as such he disputed the claim for interest as laid down by Counsel for the plaintiff.
Mr Banda further argued that interest was not automatically payable herein as the agreement of sale did not include payment of interest on the principal sum.
He also argued that there is no evidence that 52% is the bank lending rate and that if anything the plaintiff ought to have laid down a proper basis for claiming interest. Mr Tembenu in response further argued that under S. 11 (a) (v) Courts Act the court can award interest on finding that money is due. And that when such interest is awarded it is at 1% above bank lending rate. Mr Tembenu also indicated that the interest if awarded is to be agreed as between the parties.
The Court notes that it indeed has powers to award interest on debts as per S. 11 (a) (v) Courts Act.
Such interest is not ordered on damages but on sums found due on a debt. See Gwembere v Malawi Railways Ltd. 9 MLR 369.
The Court finds that herein there was a debt. And that a sum is due on that debt. On the authority of the Gwembere Case cited above this court awards interest on the sum found due on the debt herein namely K650,000.00.
The said interest as awarded shall be agreed as between the parties or may be assessed if not agreed.
The court having so ordered shall not venture to discuss whether herein it is appropriate to order interest to be payed solely on the basis that the cheques issued by the defendant were dishonoured on presentation.
MADE in Chambers this 25th day of February 2003 at Blantyre.
M. A. Tembo
ASSISTANT REGISTRAR OF HIGH COURT
AND SUPREME COURT OF APPEAL