IN THE HIGH COURT OF MALA WI

COMMERCIAL DIVISION

BLANTYRE REGISTRY

COMMERCIAL CASE NUMBER 47 OF 2016

DAIRIBORD MALA WI LIMITED .................................................... .... PLAINTIFF

VERSUS

RASHID NTAILA t/a JR LOGISTICS IMPORTS AND El PORTS ......................................... DEFENDANT

CORAM: HON. JUSTICE J. N. KATSALA J. Gulumba, of counsel, for the plaintiff Defendant absent C. Muntiti, Court Reporter Y. Makonyo, Court Clerk/Recording Officer

JUDGMENT

The plaintiff commenced this action claiming the sum ofUSD14,332.45 being the value of goods lost and/or damaged by the defendant's agent. The plaintiff also claims compound interest on the said sum at the rate of 3 percent above the commercial bank lending rate on the Malawi Kwacha equivalent of the sum claimed, and reimbursement of debt collection charges as prescribed under the Legal Education and Legal Practitioners Act, and costs of the action. The defendant denies liability in toto and counter claims from the plaintiff the sum of USD3,000 being the balance outstanding on freight charges, compound interest thereon at the rate of 5 percent above the bank lending rate with effect from January 2016 to date of payment, debt collections costs and costs of the action.

During a scheduling conference held on 22 March 2018, with the agreement of the parties, the matter was set down for trial on 20 November 2018. The parties complied with all the Directions which were given by the Court during the scheduling conference and the matter was ready for trial.

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However, on the agreed date of trial the defendant and his counsel did not appear. No word was received from them on why they were not present. On the claimant's application, the Court proceeded with the trial and heard evidence from the claimant. In the circumstances, it meant that the evidence was received unchallenged.

The claimant called one witness, Mr Edward Mandambwe, its Stores Controller, to testify in support of its case. Mr Mandambwe told the court that the claimant does not own trucks which can ferry its goods. Thus, it is one of his responsibilities to engage transporters to carry the claimant's goods. The defendant is a transporter. In or around December 2014, the claimant engaged the defendant to carry two loads for the claimant - one for Steri milk and another for Maheu - from its sister company in Zimbambwe to the claimant's premises in Malawi. Ordinarily, the claimant pays for such services after the goods are delivered but the defendant requested that he be paid part of the money upfront in order to cater for fuel and transit fees. The claimant accepted and the defendant issued an invoice (Exhibit EM 1) for the sum of USD2, 100 dated 18 December 2015. The invoice described this amount as "part payment for two loads from Harare to Blantyre Steri Milk and Maheu". On 21 December 2015 the plaintiff issued a Purchase Order for the sum of Kl,386,000 (being the Kwacha equivalent of the invoice amount) and paid the defendant the sum of K693,000 which was half of the invoice amount. According to the claimant, this payment was for the defendant's truck carrying Maheu only which was at Nyamapanda Border post in Zimbabwe since the second truck carrying Steri Milk had not yet arrived at the border post. The truck carrying Maheu delivered the goods to the claimant on 25 December 2015 and the claimant put on it a load of Ching' ombe (UHT) Milk to deliver in Zimbabwe.

However, the defendant's truck carrying the Steri Milk never arrived in Malawi. When Mr Mandambwe followed up the matter with the defendant, the defendant gave him the telephone number for one Bothwell who claimed that the truck was at Nyamapanda. However, it was later discovered that Bothwell had asked a Mr Dube to carry the goods on his behalf. Mr Dube collected the goods from the Claimant's supplier Dairibord Zimbabwe on 19 December 2015. It would appear that Bothwell and Dube had a dispute which resulted in Dube failing to deliver the Steri Milk to the claimant in Malawi. Instead, the goods were returned to the supplier on 5 January 2016. However, some of the goods were damaged and others were missing. The claimant then claimed from the defendant the value of the lost goods and the cost of handling and repackaging of the damaged goods. The defendant denied being liable for this loss and damage and refused to pay the sum ofUSD14,322.45 demanded. He told the claimant to take up the claim with Mr Dube whom he said was the carrier of the goods. The claimant decided to withhold payment of the sum of USD3,000 which was due to the defendant being the cost of carrying the Ching'ombe (UHT) Milk from Malawi to Zimbabwe and commenced the present proceedings.

The evidence before this Court shows that the agreement between the claimant and the defendant was that the defendant would carry the claimant's two loads of goods from Zimbabwe to Malawi. The invoice issued by the defendant clearly confirms this. It described the payment demanded as "part payment for two loads from Harare to Blantyre Steri Milk and Maheu". I am sure that if the agreement were that the defendant would only carry one load, the invoice would have said so. I do not see how the defendant would have talked of two loads if the agreement were for one load. Clearly, the defendant's contention that the agreement was that he should carry only one load of Maheu is not supported by the evidence.

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Further, the fact that the defendant assigned the carriage of the second load to a third party does not affect the agreement of the parties. The third party was unknown to the claimant. He was identified and contracted to carry the goods by the defendant. This was done without the knowledge of the claimant. The third party was the defendant's agent. The law is very clear in such circumstances. The defendant is liable for the acts and/or omissions of the third party. See Morgans v Launchberry [1972] 2 All ER 606. Freeman and Lockyer v Buckhearst Park Properties (Mangal Ltd) [1964] 1 All ER 630. Therefore, I do not see how the defendant can escape being liable for the loss of and damage to the goods occasioned by the third party.

On the foregoing I find that the claimant has proved its case to the requisite standard, that is, of proof on a balance of probabilities. The claimant is entitled to judgment in its favour. However, according to the evidence adduced before the Court, the claimant admits owing the defendant the sum of USD3,000 for the carriage of goods from Malawi to Zimbabwe. The claimant withheld payment of this amount as a set off to its claim. Thus, it is only fair and just that this amount be applied to the defendant's credit. Therefore, I enter judgment in favour of the claimant for the sum ofUSDl 1,332.45. I award the claimant compound interest on this sum at the rate that is applicable on the USD account. Since the claim is in USD there is no basis for awarding compound interest that is applicable on the Kwacha account. Everyone knows that the interest rates on the USD account are far much lower than those on the Kwacha account. Consequently, it would be unfair and unjust to convert the debt into Kwacha solely for purposes of allowing the claimant to benefit from the high interest rates applicable on the Kwacha account. I am unable to grant that prayer by the claimant. The justice of the matter demands that the interest rate be that applicable on the USD account. The interest will apply from the date the claim for payment was made, 26 January 2016, until full payment. The Registrar of this Court will assess the interest if the parties fail to agree. The claimant is also awarded debt collection costs as prescribed under the Legal Education and Legal Practitioners Act. The defendant will bear the costs of the action. The defendant's counterclaim is dismissed for want of prosecution. I so order.

Pronounced at Blantyre this 11 111 day of December 2018. .,,..__.-.

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