Seyani v Meyer (Civil Cause 101 of 1993) [1993] MWHCCiv 9 (27 August 1993)

BETWEEN:IN THE HIGH COURT OF MALAWI{PRINCIPAL REGISTRYCIVIL CAUSE NO. 101 OF 1993CORAM: MKANDAMIR M s a k a Fachi •IthukaneDR J H SEYANICounsel, Counsel, Off i c i a 1for the Plaintiff for the Defendant interpreter... PLAINTIFF... DEFENDANTRULINGIn this application the defendant is seeking the dissolution of an interlocutory injunction the plaintiff obtained on 17 th February 1993. Mr Fachi, who is representing the defendant, has argued that it would not be proper for him to appeal, since the defendant was not present when the application for an injunction was heard. He submitted that although the defendant did have notice of the application, it cannot be said that the injunction was inter partes, since there was no argument from him. According to Mr Fachi, for all practical purposes, the injunction was obtained ex parte, so that the proper course is to have it discharged rather than filing an appeal. On the other hand, Mr Msaka, who is representing the plaintiff, submits that the injunction was obtained inter partes, since the defendant was duly served and was, therefore, well aware of the application. According to Mr Msaka, the only course open to the defendant is to appeal, and not have the injunction dissolved.'■’hat happened is that when the application first came to Court, the defendant was present in person. He then indicated that he wanted to be represented by counsel, whereupon the application was adjourned to 17th February 1993. On that day, the defendant did not appear and there was no counsel to represent him. Mr Fachi :s explanation was that the defendant did approach his firm, but full instructions were not given. It was only on 19th February 1993. after the injunction was granted, that full instructions were given. Hr Osaka's view is that even if Messrs Fachi and Company did not have full instructions, they should still have appeared, even if it meant applying for an adjournment. Mr Fachi concedes that it would have been proper for him to attend. The question which I must first determine is whether the present application can be entertained. The immediate question is whether the injunction was_granted ex parte or inter partes In terms of Order 29/1/17 of the Rules of the Supreme Court, an injunction granted ex parte may be discharged. Strictly speaking, it cannot be said that the injunction herein was obtained ex parte, Jowitt's Dictionary of English Law, Second Edition, Volume I, page 733 says: z q"In its more usual sense i ex parte means that the application is made by oneXproceeding in the absence of the other. Thus an ex parte injunction is one granted without the opposite party having ,notice of the application. It would not be called ex parte if he had proper notice of it, and chose not to appear to oppose it."So that when it comes to notice of the application, Hr Fachi !s argument cannot be sustained, in that the defendant had full notice of the application. Although he had notice of the application, it cannot be said that there was an inter partes hearing, Mr Fachi says that on the 17th February 1993 his firm did not have full instructions, I think that it would have been prudent for Fachi and Company to appear on that day, even if it meant asking for an adjournment on the basis that they did not have full instructions. Having instructed Fachi and Company to represent him, it cannot be said that the defendant chose not to appear to oppose the application. However, the fact is that although the injunction was obtained on an inter partes application, there was no inter partes hearing. It would indeed have been inappropriate to entertain the present application for a discharge had the injunction been granted after an inter partes hearing: see 0,29/1/17 RSC I shall, therefore, proceed to hear the present application, since the defendant was not heard. Mr Fachi has argued very strongly that the injunction must be discharged because there was no agreement for sale between the parties. There is an affidavit and a number of letters have been exhibited. It is clear from the affidavit that there is a serious dispute, Mr Fachi says that the defendant did not sell the land to the plaintiff and so he cannot be restrained, since he is the legal owner. On the other hand, Hr Msaka says that the plaintiff did buy the land in question, It is abundantly clear that the dispute between the parties is very real. It is, however, not for me to say whether there was a sale or not. That is the very question that has to be determined at the trial. That question cannot be decided on affidavits. The purpose of an injunction is to preserve the status quo of the parties while their legal rights are being determined in the action between them. Hhat would happen if the injunction is removed? The answer was provided by Hr -saka. The defendant and his family will settie on the disputed land and build homes there. In the event of the action succeeding; the plaintiff will have suffered irreparable damage and the assessment of his loss would be very difficult.. The Court cannot allow such a thing to happen. The land in dispute must remain intact until the action decides who the legal owner is. The injunction will, therefore, remain in force until the action commenced herein is determined. This application is dismissed with costs.. MADE in Chambers this 27th day of August 12S3, at Bi antyreP *Mkandawire JUDGE