Lorgat and Another v Finance Bank of Malawi Limited (Civil Cause No. 932 of 2002) ((Civil Cause No. 932 of 2002)) [2005] MWHC 26 (13 May 2005);




I.I. LORGAT……………………………………………………………………………………..IST PLAINTIFF




                  Tembenu, of Counsel for the Plaintiff
                  Salima, of Counsel for the Defendant
                  Mdala, Official Interpreter
                  Pindani (Mrs), Court Reporter

Place and Date of hearing        : Blantyre                         11thMarch 2004,

2ndNovember2004,8th December 2004

Date of judgment         :                                            13thMay, 2005

Editorial Note

         There is essentially one question that arises to be decided by this Court viz whether, the Defendant breached the contract of the sale of land that was entered into between the Plaintiff and the Defendant. This main question will have to be considered together with the following additional questions:

whether on executing the agreement for sale of land of 9th December 2002 the Plaintiff thereby became the owner of property known as Title No. Chichiri 52.

whether, inspite of incomplete payment of the purchase price, the Defendant was not entitled to re-sell the said property.

Whether time was of essence of the contract in so far as the formal transfer of the property was concerned; further or in the alternative.

Whether the obtaining of consent from government to transfer of the land was of essence, and failure to obtain such consent, entitled the Plaintiff to treat the contract as having been repudiated by the Defendant.

If the determination by this Court be that the Defendant breached the said contract then the Court will also have to consider the following matters:

whether to award the Plaintiff general damages.

whether, in terms of the Plaintiff and the Defendant, the Plaintiff is entitled to a refund of the purchase price found to have been paid by him.

Whether interest is payable on the said purchase price.




         The heading of the action herein shows that there are two Plaintiffs viz I.I. Lorgat being the First Plaintiff and Midway Service Station Ltd the Second Plaintiff, but the statement of claim apparently indicates that it is the First Plaintiff who is seeking relief from this Court. Indeed, the main body pleadings do not make any reference to the Second Plaintiff. Accordingly, this Court will treat this action as having been commenced by the First Plaintiff and that it is him who wants damages for an alleged breach of contract for sale of land known as Title No, Chichiri 52. In point of fact it is him who entered into a contract of sale of land with the Defendant. It is also observed that there is a claim by the Plaintiff for a refund of all monies allegedly paid to the Defendant together with interest thereon.

         The Defendant denies being liable to pay the Plaintiff any damages or at all for the said breach of contract of sale of the said land. Actually, the Defendant has pleaded the defence of a set-off. Further, the Defendant counterclaims from the Plaintiff the sum of K14,066,703.37 which it claims arises from a loan account the Plaintiff has failed to service.

The Plaintiff’s claim and the Defendant’s response

         At this juncture the Court would wish to set out the particulars of the claim by the Plaintiff and the Defendant’s response. The complaint by the Plaintiff and the response of the Defendant are to be found in the pleadings that were exchanged between the Plaintiff and the Defendant. These are the Plaintiff’s Amended Statement of Claim and, the Defendant’s Amended Defence and Amended Counterclaim.

         The Court proposes to only give a sketch of what each one of the parties has alleged. As regards the full pleadings those will be set out as footnotes.

The Claim by the 1st Plaintiff

         In his amendment statement of claim the First Plaintiff alleges that he entered into an agreement with the Defendant to buy land. The agreed price was K20,000,000.00 of which K15, 000,000.00 was to be paid to the Defendant and the balance of K5,000,000.00 was to be paid to a Gullam Kharodia. He further alleges that he paid the said sum of K15,000,000.00. The First Plaintiff further contends that it was the implied and/or express term of the said contract of sale that on payment of the said sum of K15,000,000.00 to the Defendant the said land would be transferred to him. It is the further allegation of the Plaintiff that he did cause to be executed a transfer of the land but the Defendant has not honoured its part of the bargain by failing to execute the transfer documents and proceeded to advertise the sale of the said property to other persons.

         The Plaintiff further asserts that by offering the said property for sale the Defendant has breached the contract with him. Accordingly, the Plaintiff accepted the breach of the agreement on the part of the Defendant.

         The Plaintiff, therefore, claims that by reason of the breach there must be paid to him by the Defendant the following:

Tthe purchase price allegedly paid by him in the sum of K15,000,000.00.