Phiri v Kachere (Civil Cause 282 of 2016) [2018] MWHC 1064 (26 October 2018)

.,. . Chinyama M. Taumbe Phiri v. Martina Kachere Kenyatta Nyirenda, J. JUDICIARY IN THE HIGH COURT OF MALA WI PRINCIPAL REGISTRY CIVIL CAUSE NO. 282 OF 2016 BETWEEN: CHINY AMA M. TA UMBE PHIRI .......................................... CLAIMANT -AND- MARTINA KA CHERE ................................................... DEFENDANT CORAM: THE HONOURABLE JUSTICE KENYATTA NYIRENDA Mr. Theu, of Counsel, for the Claimant Mr. Banda, of Counsel, for the Defendant Mrs. Doreen Nkangala, Court Clerk Kenyatta Nyirenda, J RULING This is this Court's ruling on an application by the Claimant for "an interim order of stay of the decision of 14 May 2018 and for restoration of the interlocutory injunction granted on 20 July 2016 pending determination of the inter-partes application for stay; and providing for costs to be in the cause". The application is brought under Order 10, r. l and Order 13 , r. l (2)( d) of the Courts (High Court) (Civil Procedure) Rules [Hereinafter referred to as "CPR"] and the Court's inherent jurisdiction, The application is supported by a sworn statement, made by Counsel Bright Theu, "3. . .. I have received the Honourable Court's ruling of 14th August 2018 declining to determine the application in proceeding files on 18th June 2018 and heard on 28th Jun e 2018 on the ground that the court, having rendered its decision of 14th May, 2018 suo motu, it is now functus officio to set aside the said prior decision 4. The claimant did not lodge an appeal against the decision of 14th May 2018 because there was a less costly and expeditious procedure for setting aside that - Chinyama M. Taumbe Phiri v. Martina Kachere Kenyatta Nyirenda, J. order, hence the application lodged with the court on 18th June 2018, heard on 281h June 2018 for which the court's decision has come on 18th August 2018, following my written entreaties to the court to deliver the ruling I verily believe that by virtue of the proceedings and the Honourable Court decision this far, the claimant has been divested of the interlocutory injunction granted by the Honourable justice Mbvundula on 20th July 2016 for purposes of making provisions for his family 's survival. The Claimant does not have viable alternative sole sources of income to support himself in his old age and his family. He relies to a great extent from the income that comes from the rentals for the property subject of the case. To receive the said rentals, the Claimant will need, as he has been relying on, the interlocutory injunction, which I believe has now collapsed with the decisions of the Honourable Court. The claimant is desirous of pursuing an appeal against both the decision of J /h May 2018 and 14 August 2018 in terms of the Notice of Appeal filed herewith A am aware that the period for lodging an appeal against the decision of 14 May 2018 has since expired, hence the present application for, inter alia, an extension of the time to lodge the appeal against the decision of 14 May 2018. 5. 6. 7. 8. 9. I 0. I know this statement will be used in support of the present application in proceeding and I make this statement verily believing it to contain the truth to the best of my knowledge, information and belief I further acknowledge that I may be liable to substantial penalty for perjury if I knowingly state falsehood in this statement. WHEREFORE I humbly pray to the Honourable Court for an order on the terms outlined in the application notice herein. " The Defendant is opposed to the application and there is in that respect a sworn statement by Counsel Jai Banda [hereinafter referred to as the "Defendant's sworn statement"]. The substantive part of the sworn statement states as follows: "3. I have read Counsel Bright Theu 's statement of J ih August, 20 I 08 and respond as follows ; • 3.1 3. 2 Since the granting of the injunction on 20th July, 2016 the claimant has been enjoying the fruits of the injunction to date I am informed by the defendant that despite the court having vacated the iniunction on] 4th May, 2018 the claimant still proceeded to collect rent Chinyama M. Taumbe Phiri v. Martina Kachere Kenyatta Nyirenda, J. 3. 3 3.4 for the quarter June, July and August 2018 although he knew that he was not supposed to receive the rent. The defendant is unemployed and also relies to a great extent on the income of the rent for her survival and the meager assistance he gets from his son on some occasions. In regard to the court's decision of 14th May, 2018 the claimant has no basis for lodging an appeal at this stage as he on his own accord did not do so within the time prescribed by law. Wherefore I humbly pray to the Honourable Court to dismiss the application herein. " - Emphasis by underlining supplied Before considering (if at all) the application on its merits, there is the issue of "clean hands" raised by the statement in paragraph 3.2 of the Defendant's sworn statement. The Defendant's sworn statement was filed with the Court on 3rd September 2018 and the application was heard by the Court on 2ih September 2018. The Claimant never filed a sworn statement in reply to the Defendant's sworn statement, particularly to deny the statement in paragraph 3 .2 thereof. In the circumstances, the Defendant shall be taken to agree with the statement in paragraph 3.2 of the Defendant' s sworn statement. As a matter of fact, Counsel Theu confirmed in his oral submissions that the Claimant did indeed receive the rentals after he had already been served with the Order of the Court vacating the injunction. The "clean hands" doctrine or the "dirty hands" doctrine, is an equitable defense in which a party ( claimant or defendant) argues that the other party ( claimant or defendant) is not entitled to obtain an equitable remedy because the party is acting unethically or has acted in bad faith with respect to the subject of the complaint that is, with "unclean hands". The doctrine is often stated as "those seeking equity must do equity" or "equity must come with clean hands": see Sugar Corporation of Malawi v. Ron Manda, MSCA Civil Appeal No. 7 of 2007 (unreported). • In the present case, the Claimant seeks an interim order of stay and an order for restoration of the interlocutory injunction. These are equitable remedies. I have great difficulties in understanding how the Claimant expects to be granted such remedies when he has no regard for courts orders. It is thus not necessary for the Court to consider the application any further. The principles of equity cannot be invoked in aid of the Claimant because he cannot be said to have come to court with clean hand. - Chinyama M. Ta um be Phiri v. Martina Kachere Kenyatta Nyirenda, J. In light of the foregoing and by reason thereof, the application by the Claimant is dismissed with costs. Pronounced in Chambers this 26th day of October 2018 at Blantyre in the Republic of Malawi. Kenyatta Nyirenda JUDGE - 4