IN
THE HIGH COURT OF MALAWI

LILONGWE
DISTRICT REGISTRY

CIVIL
CASE NO. 654 OF 2006

BETWEEN

PETER
MIKY EFANGE………………………..………………………...PLAINTIFF

-AND-

THE ATTORNEY
GENERAL…………………………………………DEFENDANT

CORAM: MANDA,
SENIOR DEPUTY REGISTRAR

Theu
for plaintiff

Defence absent

RULING

This
was an application by the plaintiff for an order that the defendant
pays interest on the sum of K850 000 from the 12^th
of May 2001to November, 2004. The said sum of K850 000 was awarded to
the plaintiff as damages for the loss of his motor vehicle
which was
destroyed in a cross-fire, during Operation Bwezani.

Following
the award of damages on the 12^th
of May 2001, there was a court order of 2^nd
December 2002, which fixed the time for satisfying the judgment of
the 12^th
May 2001, at 40 days. However, after the expiry of the 40 days the
judgment remained unsatisfied and consequently on the 6^th
of February 2003, the plaintiff sought an execution decree under S8
of the Civil Procedure (Suits by or Against the Government
or Public
Officers) Cap. 6:01. The plaintiff was granted the decree of
execution on the 26^th
of April 2004. Following this the defendant paid the plaintiff the
sum of K850 000 between November and December, 2004. It is against

this background that the plaintiff now brings this claim for
interest, his argument being that the plaintiff was denied the fruits

of his litigation from 15^th
may 2001 to December 2004, when the full amount was settled. Briefly
this was the background to this application.

The
issue that is coming for consideration before this court is whether
in the circumstances the court can award the plaintiff interest.
In
response to this question the starting point would be the observation
that an award of interest by the High Court is discretionary
and that
the basis for the award is the fact that the defendant has kept the
plaintiff out of his money; and has had use of it
himself. So he
ought to compensate the plaintiff accordingly. This was per Lord
Denning in Harbutt’s
“Plasticine”
Ltd v Wayne Tank & Pump Co. Ltd
[1970] 1 Q.B. 447.

However,
in the exercise of its discretion, the court in Malawi has to bear in
mind that its jurisdiction has been limited by S.
11(a) (v). further,
it was the decision of the Supreme Court of Appeal in the case of
Gwembere
v Malawi Railways Ltd.,
9 MLR 369, at page 378, that sub-paragraph (v) does not provide that
interest can be claimed as of right but that it allows the
court
discretion to direct the payment of interest but only in the cases of
debt as distinct from damages. In addition, the Supreme
Court also
held that in exercising its discretion under S. 11 of the Courts Act,
the High Court should be guided by the principle
that was laid down
by Lord Hesrchell, L.C. in London,
Chatham & Dover Ry. Co. v South E. Ry. Co.
[1893] A.C. 429. The principle basically states that when money is
owing from one party to another and that other is driven to
have
recourse to legal proceedings in order to recover the amount due to
him, the party who is wrongly withholding the money from
the other
ought not, in justice, to benefit by having that money in his
possession and enjoying the use of it, when the money ought
to be in
the possession of the other party who is entitled to use it.

In
applying the above principles to this instance, it is noted that the
matter involved damages and hence falls out the ambit of
S. 11 of the
Courts Act. At the same time I do not think that it can be said that
the Attorney General was wrongly withholding
this money as there was
element of them enjoying the money, in my view, was non-existent. In
view of these two aspects then, I
do not think that the court can
exercise its discretion in this instance and award the plaintiff
interest. In view of this the
plaintiff’s application for interest
fails and is duly dismissed.

Made
in Chambers this…………day of………………………..2007

K.T.
MANDA

SENIOR
DEPUTY REGISTRAR