Mabedi v NBS Bank Ltd. (Land Case 124 of 2016) [2018] MWHC 71 (22 June 2018)

Francis Sym on M abedi v. NBS Bank Limited Kenyatta Nyirenda, J. JUDICIARY IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY LAND CAUSE NO. 124 OF 2016 BETWEEN: r FRANCIS SYMON M A B E D I........................................................... CLAIMANT *v.y -AND- NBS BANK L IM IT E D ........................................................................ DEFENDANT CORAM: THE HONOURABLE JUSTICE KENYATTA NYIRENDA Mr. George Kaliwo, of Counsel, for the Claimant Mr. Mambulasa, of Counsel, for the Defendant Mrs. Doreen Nkangala, Court Clerk ________________________________ ORDER________________________________ Kenyatta Nyirenda, J. The present proceedings were commenced on 10 October 2017 by writ of summons claiming, among other things, a declaration that the Defendant as chargee was not entitled to possess or sell his property title No. Bwaila-6/182 situated in Area 6 in the City o f Lilongwe (charged property). On 19th October 2016, the Claimant obtained an ex-parte order o f interlocutory injunction restraining the Defendant from taking possession of, or in any way, dealing with or selling or purporting to sell or purporting to sell, the charged property pending the determination o f the main case or a further order o f the Court. The ex-parte order o f interlocutory injunction was on 12th December 2016 sustained following an inter-partes hearing. The Defendant entered its defence on 16th November 2016 and the Claimant was duly served with the same. The Claimant has taken no step whatsoever in these proceedings since then. Order 12, r.56, o f the Court (High Court) (Civil Procedure) l Francis Sym on M abedi v. NBS Bank Limited Kenyatta Nyirenda, J. Rules [Hereinafter referred to as “CPR”] comes into play where there is such non­ action. The provision is couched in the following terms: “The C ourt m ay strike out a proceeding w ithout notice, i f there has been no step taken in the proceedings fo r 12 months. ” In the present proceedings, more than 18 months have elapsed without the Claimant taking steps to prosecute this case. The delay to prosecute the proceedings is inordinate and inexcusable. This is clearly an abuse o f court process. I have no option but to strike out the proceedings herein. It is so ordered. In light o f the foregoing and by reason thereof, the Registrar’s attention is drawn to Order 12, r.58, o f CPR. For the sake o f completeness, it is worth remembering that the right to an interlocutory injunction is not a cause of action in itself: see The Siskina [1979] A. C. 210 and Channel Tunnel Group Ltd v. Balfour Beatty Construction Ltd [1993] A. C. 334 at 360-362. To quote Lord Diplock in the former case at 256: “A right o obtain an interlocutory injunction is not a cause o f action. It cannot stand on its own. It is dependent upon there being a pre-existing cause o f action against the defendant arising out o f an invasion, actual or threatened by him, o f a legal or equitable right o f the p la in tiff fo r the enforcem ent o f which the defendant is amenable to the jurisdiction o f the court. The rish t to obtain an interlocutory injunction is m erely the pre-existine cause o f action. ” — Emphasis by ancillary a nd incidental to underlining supplied In this regard, the continuation o f the interlocutory injunction cannot be sustained. The interlocutory injunction has, accordingly, to be discharged. I so order. Pronounced in Chambers this 22nd day o f June 2018 at Blantyre in the Republic of Malawi. -- ------^ ~ ( \Ck\AVy cnyaftaNyirenda JUDGE 2