Artline Furniture Limited t/a Wico Poles v Electricity Supply Corporation of Malawi Limited (Civil Cause No. 83 of 2016) [2017] MWHC 10 (19 January 2017);

MALAWI JUDICIARY

IN TIIE HIGH COURT OF MALAWI

PRINCIPAL REGISTRY

CIVIL CAUSE NO. 83 OF 2016

BETWEEN,

ARTLINE FURNITURE LIMITED t/a WICO POLES………………………..PLAINTIFF

-AND-

ELECTRICITY SUPPLY CORPORATION OF MALAWI LIMITED ……….DEFENDANT

CORAM,TAMANDA C. NYIMBA    , Assistant Registrar

Msuku                                         , Counsel for the Plaintiff

Chimowa/Mauluka                         , Counsel for the Defendant

Mrs. Phombeya                             , Court Clerk

ORDER

1.      INTRODUCTION

1.1.   This is the court's order on the plaintiff's application for summary judgment brought under Order 14 of the Rules of the Supreme Court (RSC). In support of the application is an affidavit sworn by Mr. Amani Squeer Wittman Kunje the plaintiff's Production Manager. The plaintiff also filed skeleton arguments. The defendant did not file any papers in opposition save for submissions filed at the conclusion of hearing to which the plaintiff also made a reply.

1.2.   The background to the present application is that by way of a specially endorsed writ of summons issued on 4th March 2016 the plaintiff commenced an action claiming the sum of K27.826.301.84 being a sum allegedly due from the defendant to the plaintiff for poles supplied by the plaintiff to the defendant. The plaintiff further claims interest at the commercial lending rate on the stated sum as well as costs of the action.

2.      TIIE PARTIES' CASES AND SUBMISSIONS

2.1.    For purposes of the application herein the plaintiff's case as garnered from the affidavit in support and skeleton arguments can be summarised as follows. The plaintiff has been involved in the business of supplying poles to the defendant which poles the defendant uses for transmission of electricity. For many years the two parties have been conducting business in such a way that the plaintiff supplies the poles for which it raises invoices and delivery notes which the defendant acknowledges and subsequently issues payment vouchers and payments.

2.2.   In the course of their usual business between July and October 2015 the plaintiff supplied poles to the defendant amounting to K27.826.301.84 and. as usual issued invoices and delivery notes which were duly acknowledged by the defendant. As yet the defendant has not paid the stated amount despite reminders. When the plaintiff took a writ of summons to enforce payment it was surprised that the defendant in its defence denied being supplied any materials by the plaintiff when by the defendant's own documents it has paid for some of the poles and acknowledged receipt of the ones for which payment is still owing and has not been paid.

2.3.   The plaintiff contends that the defendant's defence comprises of general denials. The plaintiff goes on to argue that it is clear that the defendant has no defence to the plaintiff's claim and that the purported defence is nothing but a sham and mere abuse of court process as it is clearly filed in bad faith. On these grounds the plaintiff submits that this is a proper case for the court to dispose of the matter summarily by entering judgment in favour of the plaintiff or strike out the defence for being an abuse of court process.

2.4.   As regards the defendant's case while I appreciate that it would have been prudent to reproduce the defendant's defence in full. I see no utility in doing so for reasons that will be become clear anon. As mentioned earlier respecting the present application the defendant's legal practitioner only filed written submission following hearing. I shall make reference to pertinent parts of the defendant's submission when I discuss the facts alongside the law relevant to the determination of the application under consideration.

3.      ISSUE

3.1.   The issue for determination is whether or not summary judgment should be entered in favour of the plaintiff as prayed.

4.      THE APPLICABLE LAW

4.1.1.     Order 14 Rule 1 of the RSC provides as follows,

"VV11ere in an action to which this rule applies a statement of claim has been served on a Defendant and that the Defendant has given notice of an intention to defend the action, the Plaintiff may, on the ground that the Defendant has no defence to a claim or part except as to the amount of any damages claimed, apply to the Court for judgment against the Defendant"

4.2.   In the case of Arend and Another v Astra Furnishers (Ply) Ltd¹ the court pronounced thus,

"....an important factor to be taken into account by the court in determining how to exercise its discretion, is the consideration that the procedure of summary judgment constitutes an extraordinary and very strigent remedy it permits a final judgment to be given against a defendant without a trial It is designed to prevent a plaintiff having to suffer the delay and an additional expense of the trial procedure where the defendant’s case is a bogus one or is bad in law and is raised merely for the purpose of delay, but achieving this makes drastic inroads upon the normal right of a defendant to present his case to the Court."

4.3.   And so the purpose of Order 14 of the RSC is to enable a litigant obtain summary judgment without trial if one can prove his claim clearly and if the defendant is unable to set up a bona fide defence or raise an issue against the claim which ought to be tried². Thus where the court is satisfied that not only that there is no defence but also no arguable point on behalf of the defendant it is the court's duty to give judgment for the plaintiff³.

4.4.   Whilst the plaintiff must prove his claim clearly to be entitled to summary judgment, the hurdle which the defendant has to jump is unexceptional. Unless his alleged defence is practically moonshine, he should be given a chance to defend⁴. The reason why the defendant has a modest hurdle to jump is that the effect of Order 14 of the RSC is to deny a litigant the fundamental right to defend himself in court. Unless it is clear that even given a right to have his say at the trial he would have nothing worthwhile to say he should be given leave to defend⁵.

5.      ANALYSIS AND DETERMINATION THEREON

5.1.   Without keeping the parties in gratuitous suspense. I firmly make a pronouncement right away that the plaintiff's application for summary judgment must succeed. I grant the application on the basis of my reasoning deployed hereunder.

5.2.   Viewed in light of the plaintiff's clear statement of claim which was for purposes of this application importantly further comprehensively buttressed by a string of documents exhibited to the affidavit in support of the application at hand, it is an undeniable fact that the defendant's defence comprises of general denials. Indeed in paragraph 9 of the Defendant's Submission under a heading tilted "Submission" the defendant concedes this fact in the following terms,

"The defendant admits that the Defence that was filed was that of general denials."

5.3.   The court in Registered Trustees of Sedom v Buleya⁶ held that a mere general denial that the defendant is indebted will not suffice unless the grounds on which the defendant relies as showing that he is not indebted are stated. The defendant's defence herein has no leg to stand on as the defendant has in no uncertain terms accepted that its defence is made up of general denials devoid of any grounds on which the defendant bases the denials.

5.4.   I interpose at this juncture to observe that having admitted that the defence filed consists of general denials the defendant goes on to submit as follows,

"This defence was filed pending filing of a more substantive defence after clarifying documents between the plaintiff and the Defendant. The Defendant submits that it has a defence on the merits⁷”.

5.5.  With all due respect, this submission is utterly outlandish and flies in the face of received rules of pleading and procedure. In this context. I respectfully and gratefully adopt the reasoning of learned counsel for the plaintiff who sedulously and rightly submits that a party cannot bring a sham defence and upon the same being challenged move the goal posts, as it were, and claim that the defence was just advanced pending filing of a more •substantive defence" -whatever that means.

5.6.  In my judgement, tolerating such a procedure would be a recipe for uncertainty and chaos. Such a practice would surely further obliterate the utility of applications founded on Order 14 of the RSC since it has been held that a defence that has been delivered discloses facts which makes an application under Order 14 right and proper⁸ Permitting the procedure being canvassed by the defendant's counsel would mean a party served with a defence that is clearly a sham would not be attracted to apply for summary judgment on account of the real likelihood that the application will be disabled by the defendant merely arguing that the defence which is not bona fide was a "holding defence" pending filing of a "substantive defence". I must remark that I fail to understand why, if the defendant truly wanted to file the so-called substantive defence", and assuming that the defendant had a defence on merit its counsel did not simply seek leave to amend the sham defence before the plaintiff lodged the present application.