In the High Court of Malawi Commercial Division Blantyre Registry Commercial Case Number 81 of 2012
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IN THE HIGH COURT OF MALAWI COMMERCIAL DIVISION BLANTYRE REGISTRY COMMERCIAL CASE NUMBER 81 OF 2012 NBS BANK LIMITED..............................................................................................PLAINTIFF VERSUS MODERN BUSINESS MANAGEMENT LIMITED...................................1st DEFENDANT HENRY REDSON MWALE......................................................................... 2nd DEFENDANT CORAM: HON. JUSTICE J. N. KATSALA P. Mpaka, of counsel for the plaintiff M. Chisanga, S.C., of counsel for the defendants Makonyo, Court Clerk/Recording Officer JUDGMENT The plaintiff commenced this action against the defendants by way of writ of summons claiming the sum of K20,504,311.59 and interest from 7 September 2011 to the date of payment. The plaintiff is also claiming the sum of K 3,075,646,74 as debt collection charges and further collection charges at the prescribed scale and costs of the action. In response, the defendants have each filed a defence and a counterclaim seeking various declarations and orders. The 1st defendant prays for the following; a declaration that the conduct of the plaintiff in selling Tata Buses was a trespass in law; an order for damages in trespass to be assessed; an order that house number KS1/75 was sold at an undervalue; an order that damages for selling the house at an undervalue be assessed; an order that the transaction between the plaintiff and the defendant is a loan transaction and has to be governed by the Loans Recovery Act; an order that the additional interest rates added to the loan sum were unreasonable; an order that the interest cannot be paid over interest; an order that the penalties are illegal and cannot be added on interest and recovery sums on a loan; an order that 1 the transaction be re-opened for the correct interest and sums due to be recalculated; general damages to be assessed and costs. The 2nd defendant counterclaims for the sum of K3,572,371 being the value of rentals from 1 October 2010 to 30 September 2016 as special damages for the wrongful sale of his house Title Number KS1/75; further rentals from 1 October 2016 to date of payment; and general damages for wrongful sale of the house. Briefly, the facts of the case are that the plaintiff is a commercial bank duly registered under the Banking Act and the 1st defendant was one of its customers. The 2nd defendant is a shareholder and a director of the 1st defendant. On 21 August 2008, the plaintiff and the 1st defendant entered into a lease facility agreement for the sum of K20 million for the purchase of 2 Tata Buses from Tata Zambia Limited. The 1st defendant agreed to repay the facility within 36 months from the date of signing the agreement with interest at the rate of 26% or any other rate as the plaintiff would, in its sole discretion, determine as the applicable commercial rate. The lease facility was secured by a surety charge executed by the 2nd defendant over his property known as and being Title Number Soche East KS1/75 and by the two Tata buses on whose registration certificates the plaintiff was endorsed as the Title Holder. Aso, a Bill of Sale was to be executed over the buses in favour of the plaintiff. The 1st defendant’s shareholders were also required to enter into joint and several guarantees for the repayment of the facility. The two buses were duly purchased and the 1st defendant started operating a passenger service business. However, the 1st defendant failed and/or neglected to service the lease facility as a result thereof as at May 2010, arrears had grown to K31,316,945.04. In October 2010, the plaintiff, in exercise of the power of sale under the surety charge, sold the 2nd defendant’s property at the price of K3,875,000.00. The plaintiff also sold one of the Tata Buses (Registration Number BP 5523) through tender at a price of K8 million. In or around September 2011 the plaintiff sold the other Tata bus (Registration Number BP 6188), which was damaged in an accident, through tender at a price of K3.5 million. When all these amounts were credited to the lease account there was an outstanding balance of K20,504.311.59, as at 7 September 2011. The plaintiff then commenced the present proceedings to recover this amount, interest and costs as aforesaid. The 1st defendant contends that immediately upon signing of the lease facility agreement the plaintiff revised the agreed interest rate upwards without consulting it, and that apart from charging interest, the plaintiff also unlawfully charged penalties on the amount due for payment. A Bill of Sale was neither signed nor registered in favour of the plaintiff on the two buses as security for the loan. If a Bill of Sale was signed and/or registered, the 1st defendant contends that the same did not meet the requirements of the Bill of Sale Act and is thereforevoid ab initio. The 1st defendant also disputes the loan balance and contends that the balance reached such levels because “unagreed” interest and penalties were charged and added to the balance. The 1st defendant denies that it breached the terms of the lease agreement as alleged or at all. It contends that if it breached the said terms of the agreement, such breach was induced by the plaintiff. 2 It is clear from the evidence that the plaintiff and the 1st defendant had a detailed framework setting out their agreement. Under the agreement the security for the 1st defendant’s right to use the two buses was in four aspects, namely, (1) the endorsement of the plaintiff as the Title Holder over each bus, and (2) the registration of a charge in favour of the plaintiff over Title Number Soche East KS1/75, (3) the joint and several guarantees by the 1st defendant’s shareholders, and (4) a Bill of Sale over the two buses. It is not in doubt that the 1st defendant’s right to possession and use of the buses was dependent on the 1st defendant’s continued satisfaction of the obligation to pay to the plaintiff the agreed instalments. The evidence before the Court clearly shows that the 1st defendant failed on this obligation. And despite all the indulgence that the plaintiff gave, the 1st defendant failed to service the facility. There is no doubt that this was a breach of the agreement between the parties. In my judgment, by this breach, the 1st defendant forfeited the right to possess and or use the buses. I do not see how the 1st defendant would have been entitled to continue with the possession and/or use of the buses in the absence of a continued satisfaction of the corresponding obligation to pay the instalments when they fell due. I find it to be contrary to both business and legal sense for the 1st defendant to contend that despite its persistent failure to pay the agreed instalments, it was still entitled to the possession and use of the buses. No lawful basis, or indeed any cogent commercial justification has been advanced in support of that contention. Throughout the lease agreement, the plaintiff remained the title holder of the buses. In defining property, section 2 of the General Interpretation Act provides: “‘property’ includes money, and every description of property, whether movable or immovable, animate or inanimate, obligations and every description of estate, interest and profit, present or future, vested or contingent, arising out of or incident to property” In my judgment, the plaintiff had property in the buses. The definition of title holder and owner in relation to a motor vehicle in section 2 of the Road Traffic Act is very significant. It subjects the property rights in a vehicle to the contractual setting in which the rights of use, possession, nominal and legal title are interwoven. It provides: “owner” in relation to a vehicle, means— (a) the person who has the right to the use and enjoyment of a vehicle in terms of a contractual agreement with the title holder of such vehicle; (b) any person referred to in paragraph (a), for any period during which such personhas failed to returnthat vehicle to the title holder in accordance with the contractual agreement referred to in paragraph (a); (c) the person who is a title holder and has the use and enjoyment of the vehicle; or 3 (d) a motor trader who is in possession of a vehicle for the purpose of sale, and who is registered as such under section 11; and “owned” or any like word has a corresponding meaning; “title holder” in relation to a vehicle, means— (a) the person who has to give permission for the alienation of that vehicle in terms of a contractual agreement with the owner of such vehicle, or (b) the person who has the right to alienate that vehicle, and who is registered as such under section 11.” From the foregoing provisions, it is clear that the plaintiff, having been registered under section 11 as the title holder of the buses, had the right to alienate the buses. In other words, the plaintiff had the right to transfer the property and/or ownership of the buses. As the title holder, they had the right to sell the buses. In that vein, I do not see how the plaintiff can be said to have trespassed when it took possession of the buses following the 1st defendant’s continued failure to pay the agreed instalments. In the same vein, I do not think that the failure to register a Bill of Sale in relation to the buses has any effect on the rights of the plaintiff as a title holder.