Chiwalo v Pondani ( Nee Mpira) , Sub traditional authority Maoni, Senior group village headman Mangulama and Traditional authority Nkalo (Civil Cause 120 of 2017) [2018] MWHC 1307 (12 December 2018)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NUMBER 120 OF 2017 BETWEEN: SIMEON CHIWALO PLAINTIFF AND SUZENI PONDANI (NEE MPIRA) 1'1 DEFENDANT SUB TRADITIONAL AUTHORITY MAONI 2"ct DEFENDANT SENIOR GROUP VILLAGE HEADMAN MANGULAMA 3rct DEFENDANT TRADITIONAL AUTHORITY NKALO 4111 DEFENDANT CORAM: JUSTICE M. A. TEMBO, Master, Counsel for the Plaintiff, Chagwamnjira, Counsel for the Defendants Mankhambera, Official Court Interpreter ORDER This is the order of this Court on the defendants' application that the order of injunction earlier granted to the plaintiff in this matter be vacated for the reason that the status quo that existed at the time the order of injunction was granted no longer exists and that there is no need for the preservation of the status quo by injunction. The facts of this matter are as follows. On 12°1 April 2017 the plaintiff applied ex parte for an order of interlocutory injunction in the following terms. He sought an order of injunction restraining the 1 st defendant from exercising chieftaincy powers over Takhiwa village and also restraining the 2°d, 3rct and 4th defendants from implementing their decisions to install the 1 st defendant as Group Village Headwoman Takhiwa and from interfering with the plaintiffs exercise of chieftaincy powers over Takhiwa village until determination of this matter or fmiher order of this Court. This Comi granted the order of injunction ex patie pending determination of the plaintiffs claim or further order of this Court. There was a provision that there be an inter partes hearing at which the defendants would be heard with regard to continuation of the ex paiie order of injunction up the time of trial of this matter. There were problems to do with the legal representation of the defendants in this matter and the inter paties application was eventually heard on 19th October 2017 and the order of injunction was ordered to continue until determination of this matter. The defendants in fact did not contest the inter paties application and agreed to the continuation of the injunction. By the present application the defendants sought an order to vacate the inter pa1ies injunction on the basis that the status quo that existed at the time the order of injunction was granted inter paties no longer exists and that there is no need for the preservation of the status quo by injunction. The plaintiff made a preliminary objection to the defendants' application arguing that it was irregularly made contrary to the applicable procedure. This Court deals with the preliminary objection first. Consideration of the defendants' application to vacate the injunction will depend on the outcome of the plaintiffs preliminary objection. The plaintiffs objection is that the defendants are not entitled to make the instant application to vacate the interlocutory injunction that was granted at an inter paiies hearing but rather to appeal against the same. The plaintiff relied on the decision in the case of Kasema v National Bank of Malawi civil cause number 229 of2001 (High Comi)(unreported). The defendants conceded that indeed the decision in Kasema v National Bank of Malawi represents the law. The defendants however contended that the interlocutory injunction granted inter paiies in this matter is amenable to be varied under Order 10 rule 4 of the Comis ,:, (High Court)(Civil Procedure) Rules because it was premised on two grounds, namely, that the rest of the defendants making the appointment of the 1 st defendant in this matter had no authority to do so and further that there was a subsisting appeal by the plaintiff against the said defendants that have powers to appoint and install chiefs pending before Senior ChiefKadewere. The defendants contend that the appeal against their decision appointing the 1 st defendant as village head has since been determined before Senior Chief Kadewere. And that obviously the said defendants have power to appoint the 1 st defendant as village head under the Chiefs Act. The defendants contend that in the circumstances, they are entitled to have the interlocutory injunction varied or set aside because the basis on which it was made has ceased to exist. The plaintiff replied that the duration of the interlocutory injunction was until the determination of this matter before this Comt and not pending the appeal before Senior ChiefKadewere. This Comt has observed that, as rightly contended by the defendants, the plaintiff's statement of claim seeks a declaration that the 211ct, 3rd and 4111 defendants have no power to appoint the 1 st defendant as village head. Obviously the Chiefs Act clearly gives a Traditional Authority such as the 4111 defendant power to appoint village heads under the Chiefs Act. However, the plaintiff fmther seeks a declaration that, as between himself and the 1 st defendant, it is him who is the rightful person to continue as village head since he has served as such for a long time. On account of that claim the plaintiff sought the interlocutory injunction herein until this matter is determined. An inter pa1tes hearing on the plaintiff's application for an interlocutory injunction was therefore had and an order of interlocutory injunction was subsequently granted on the basis that, the status quo be preserved, in that the plaintiff continue as village head until the issue as between himself and the 1 st defendant as to who is rightful person to be village head is determined before this Comt. As col1'ectly submitted by the plaintiff, the issue of the appeal before Senior Chief Kadewere did not feature in this Comt's consideration of the inter partes application for injunction. This Couti therefore agrees with the plaintiff that the right way to proceed was to appeal against the order of injunction that was made inter paiied herein because the basis for that injunction has not ceased to exist as alleged by the defendants. The basis still remains that this Court must determine as to who between the plaintiff and the 1 st defendant is the rightful person to be village head in the circumstances of this matter. This Comi has noted that although the defendants could apply for an interlocutory order under Order 10 rule 4 of the Comis (High Comi)(Civil Procedure) Rules that does not allow the defendants to apply to set aside an order of interlocutory injunction granted on an inter partes application. In fact, Order 10 rules 27-30 Comis (High Couti) (Civil Procedure) Rules are self- sufficient in that they allow this Court to make an order of interlocutory injunction on terms it considers just. In the present case, this Comi made an order of interlocutory injunction ex paiie due to the urgency of the situation and put in a term that there be an inter paiies application subsequently. The inter paiies application was filed, heard and determined. The defendants if aggrieved must appeal but cannot come back to this Comi to seek variation of the said inter partes order. There is nothing in Order 10 rules 27-30 Comis (High Comi) (Civil Procedure) Rules allowing an aggrieved party to seek variation or discharge of an interlocutory injunction after an inter paiies hearing. This is in contrast to the provisions in relation to freezing and seizing injunctions which are amenable to be vai·ied or set aside on application. The objection by the plaintiff is therefore well taken and the defendants' application is dismissed for procedural in-egularity with costs to the plaintiff. Mediation having already been terminated before this Comi, this matter shall come for a scheduling conference as per the relevant Rules so that trial directions ai·e made. See Order 14 Comis (High Comi) (Civil Procedure) Rules. Made in chambers at Blantyre this 12th December 2018. 4