IN THE HIGH COURT OF MALAWI
LILONGWE DISTRICT REGISTRY
CIVIL CAUSE No.65 OF 2004
BETWEEN
J.P. MTSIRO ... . PLAINTIFF
AND
BALEKE ENTERPRISES LIMITED DEFENDNAT
Coram: Ligowe : Assistant Registrar
Kalasa : Counsel for the plaintiff
Njirayafa : Court Clerk Interpreter
ORDER ON ASSESSMENT OF DAMAGES
The plaintiff obtained judgment in default of defence for the defendant to pay as follows:
Transport charges for three trips from Kasungu to Mzuzu floors and two trips from Kasungu to Lilongwe floors.
Damages for loss of business from 6th September,2002 to the date of the judgment plus interest thereon.
Collection costs on the money owing regarding the five trips.
Damages for loss of service when the plaintiffs agents were falsely imprisoned at the instance of the defendants servants or agents.
Total cost for obtaining and executing an order of injunction for release of motor vehicle Reg. No. BJ 588 in the sum of MK1 096 042.00.
Costs of this action.
This judgment is so detailed but I was not able to find a detailed statement of claim on the file. All that is there is the claim for damages for loss of business indorsed to the writ. The judgment itself being in default of defence presupposes a statement of claim was served on the defendant. This is the assessment of the damages. I will assess them on the evidence given as against the judgment.
The defendant did not attend court on the date appointed for the assessment despite having been duly served with the notice. No reason for non attendance having been given, the court proceeded in the absence of the defendant. After hearing counsel for the plaintiff promised the court written submissions which have not been submitted up to date. I think this is a matter I can rule even without the submissions in the interest of time.
One witness testified, Petros Mtsiro the plaintiffs son. His evidence shows that the plaintiff owns a ten tonner lorry Reg. No. BJ 588. On 14th November 2002 the plaintiff and the defendant entered into a contract for the plaintiff to transport the defendants tobacco from Kasungu to Mzuzu and Lilongwe Auction floors. It was agreed under the contract that the plaintiff would be paid K450 per bale from Kasungu to Mzuzu and K300 per bale from Kasungu to Lilongwe. Exhibit KRK2 is a copy of the contract document. On the first trip to Mzuzu they carried 160 bales. Invoice No. 004 dated 3rd July 2002 shows the charge was K72 000. The second trip 150 bales and invoice No. 005 of even date is for K67 500. The third trip 170 bales and invoice No. 006 of the same date is for K76 500. On the first trip to Lilongwe they carried 165 bales. Invoice No. 003 shows the charge is K49 500. The second trip to Lilongwe is the one that ended in problems. They had carried 171 bales and the charge was K51 300. The lorry was hijacked on the way. The lorry and the two people taken together with it were later found damped at area 12 in the city of Lilongwe but the tobacco had been stolen. It appears the defendants, their servants or agents were so disgruntled to have lost their tobacco that way. Later they made off with the lorry in the absence of the owners while it was parked at Kasungu. They detained it for six months. It was only returned after this courts order to release it to the owners. No invoice was raised for the 171 bales. The raised invoices were not paid.
Petros Mtsiro told court there were a wheel spanner, a tyre, a rope and a tarpaulin which were on the lorry but had not been retuned with it. On the loss of business he testified the lorry could sometimes make them K45 000. He was not able to specify the interval at which they would make this money.
Having heard the evidence I award the plaintiff K265 500 being the charges for transporting the tobacco from Kasungu to Mzuzu and Lilongwe on the invoices raised. I also award K200 000 for loss of business during the six months the lorry had been detained by the defendants. But I award nothing on the lost items on the lorry as it appears from the judgment that such loss was not specifically pleaded.
In total the plaintiff is awarded K465 500 plus costs of the action.
Made in Chambers this day of October 2005.
T.R. Ligowe
ASSISTANT REGISTRAR