Kachembere v Mulasa (Land Cause 137 of 2023) [2024] MWHC 32 (22 January 2024)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL DIVISION LAND CAUSE NO. 137 OF 2023 (Before Honourable Justice Mambulasa) BETWEEN: EGGS KACHEMBERE (On his own behalf and on behalf of the KACHEMBERE Clan)........csccsccscccccssccccccsssceccccsssessesseseesee sees CLAIMANT -AND- LABANA MULAGA..............ccece sce cceescecccceecnceeccceseeseeseeees DEFENDANT CORAM: HON. JUSTICE MANDALA MAMBULASA Mr. Chancy Gondwe, Advocate for the Claimant Mr. James Tate Chiundira, Advocate for the Defendant Mr. Obet Chitatu, Court Clerk ORDER MAMBULASA, J [1] [2] [3] [4] [5] Introduction On 13" December, 2023 the Claimant filed a without-notice application for an interlocutory order of injunction to restrain the Defendant or any of his servants or agents from trespassing and interfering with the Claimant’s peaceful occupation of his land at Namasalima Village, Traditional Authority Njewa in Mulanje District. Upon considering the application and the relevant law, the Claimant was granted the order that he sought from the Court. The Court granted the order that the Claimant sought on two terms, namely, that the Claimant shall then file with the Court and serve on the Defendant a with-notice application for its continuation or discharge, as the case may be, within 14 days from 13 December, 2023 and further, that the with-notice application shall be heard on 22™ January, 2024 at 11:00a.m. The Claimant did not file with the Court and serve on the Defendant the said with-notice application for an interlocutory order of injunction as ordered by the Court. He also, through his legal practitioners, did not attend the scheduled with-notice application hearing today, 22"! January, 2024 at 11:00a.m. The Defendant’s legal practitioner did not attend the scheduled with-notice hearing today, 22™ January, 2024 at 11:00a.m. because he was not served with the process by the Claimant as directed by the Court. Actually, he is appearing on the coram for purposes of completeness and as a formality because he is the one on record having filed a defence for the Defendant in the main action. Issue for Determination [6] The only issue falling for determination before this Court is whether or not this Court may set aside the interlocutory order of injunction that it granted to the Claimant suo moto? The Law [7] The grant or refusal for applications for interlocutory orders of injunction 1s primarily governed by Order 10, rule 27 of the Courts (High Court) (Civil Procedure) Rules, 2017. The said Order and rule is to the effect that the Court may, on application, grant an injunction by an interlocutory order when it appears to the Court that (a) there is a serious question to be tried; (b) damages may not be an adequate remedy; and (c) it shall be just to do so, and the order may be made unconditionally or on such terms or conditions as the Court considers just. [8] A court which grants an application for an interlocutory order of injunction obtained on a without notice basis, has the inherent power to set it aside or discharge it on various grounds.! ' Edda Biziwick -vs- Ellen Mposa, Land Cause No. 7 of 2021 (High Court of Malawi) (Principal Registry) (Civil Division) (Unreported). 3 [9] [10] [11] [12] [13] One of such grounds is the failure by the Claimant to comply with any terms or conditions upon which the order was granted as the Court considered just in terms of the said Order and rule. The Court is enjoined to give effect to the overriding objective of the Courts (High Court) (Civil Procedure) Rules, 2017 whenever it exercises any power conferred on it by these Rules or whenever it interprets any written law, rules and regulations. Analysis and application of the law to the facts In this matter, the Claimant has not complied with the terms upon which the without notice interlocutory order of injunction was granted to him under Order 10, rule 27 of the Courts (High Court) (Civil Procedure) Rules, 2017. First, the Claimant did not file and serve on the Defendant a with-notice application for the continuation or discharge of the without notice order within 14 days from 13" December, 2023 as ordered by this Court. In the absence of any communication from the Claimant, this Court is entitled to assume that the failure to comply with this term was without good cause. Second, the Claimant did not attend hearing of the scheduled with-notice application for today, 22™ January, 2024 at 11:00 am. as ordered by this Court. Similarly, this Court proceeds on the assumption that the failure to attend hearing was also without good cause. [14] A breach of the term or terms or condition or conditions upon which a without notice interlocutory order of injunction was granted is a ground upon which a Court may set aside or discharge such an order on suo moto basis. [15] Such a without notice interlocutory order of injunction cannot continue to remain in force forever without affording an opportunity to the Defendant to be heard on it. That would be unfair and contrary to the overriding objective of the Rules which is to deal with proceedings justly. It would also be tantamount to condemning the Defendant unheard. In any event, such an order is made until any further order of the Court. [16] In view of the foregoing, this Court sets aside, on its own motion, the without notice interlocutory order of injunction that it granted to the Claimant on 13" December, 2023. [17] Made in Chambers this 22" day of January, 2024 at Blantyre, Malawi. iL Lasz M. D. MAMBULASA JUDGE