Businessman appeals against National Bank of Malawi on K45m claim

A Blantyre-based businessperson Harry Thindwa has filed an appeal against the High Court Commercial Division’s ruling after losing his case against National Bank of Malawi (NBM) for wrongful seizure of his truck which led to loss of business claiming to be around K45 million.

Thindwa through his lawyer, Ambokile Salimu are appealing against Justice Judge John Katsala’s ruling, arguing the learned judge erred when he quashed the businessman’s claim on basis that there was no evidence to prove the bank was in any wrong doing.

In his ruling, Judge John Katsala had said Thindwa’s claim could not be sustained, saying the bank could not be held liable to his loss of business despite him furnishing the court with documents proving his claim.

Grounds of Appeal

But in the Notice of Appeal filed at the court, Salimu argues that the judge erred by not awarding his client consequential damages in the sum of K45.6 million for either the tort of trespass to goods or conversion despite the bank admitting to have wrongfully seizing his truck.justice

“The learned trial judge’s finding that there was no evidence to support the allegation that the defendant knew, at all material times, that there existed a contract between the Appellant and Katundu Haulage, is glaringly against the weight of the evidence.

“On the facts it was an error of law for the judge to find that such knowledge of the contract was supposed to have been only at the time of the illegal seizure of the motor vehicle in issue,” argues Salimu.

Salimu also argues that Katsala erred at law in not at all considering the tort of conversion which was part of his client’s claim, saying if the judge had done so, he would have found that the facts did satisfy all elements of the commission of the said tort.

He has since asked the court to reverse the whole Katsala’s judgement, which has affected both Harry Thindwa and his mother Wandiya.

“The learned trial judge erred at law in not awarding damages because general damages had not been pleaded as the measure of damages for conversion and/or trespass to goods is the value of the asset plus consequential damages which were duly pleaded and approved at trial”.

Background

Thindwa, earlier this year, commenced legal action for lost of a two-year business deal from Katundu Haulage for a monthly fee of K1, 900, 000 totalling to K45, 600,000, following the seizure of his vehicle by the bank.

The bank on October 6, 2012 through its agents, Powermite Bargains illegally seized his truck, Man Diesel registration number NA3685 in its quest to recover payment of Master Lease entered between the bank and its client, Wandiya Thindwa.

Wandiya Thindwa (Harry Nthindwa’s mother) used as surety her truck Layland DAF MZ8875 and Isuzu Giga NA3084 both registered under her company, Tahama Enterprise, in the Master Lease Agreement that never included her son’s truck Man Diesel registered under Wanhat Investment.

However, NBM through its lawyer, Meyer Chisanga dismissed the claim, arguing it was not aware of the contract Thindwa’s truck had with katundu at the time it was impounded.

Chisanga conceded that the bank impounded the wrong truck that was not part of the lease agreement but was quick to point out that the incident had anything to do with the claimed loss of business on the part of Thindwa.

Chisanga claimed the truck was impounded upon instructions from Wandiya Thindwa and that it was broken down at the time it was impounded.

 

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