Sulaimana v Mponda and 2 Others (Land Cause 86 of 2015) [2021] MWHC 393 (19 November 2021)

Page 1 of 13 REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI ZOMBA DISTRICT REGISRTY LAND CAUSE NUMBER 86 OF 2015 BETWEEN DR RAJAB SULAIMANA .........:cccecensece nesses eneerenenenecssseseseeaceenereseasees CLAIMANT AND AGNESS MPONDAA .......cccsccarecseeecscenecnsenscesnonsnsenerenusecsusucenacs rene 18T DEFENDANT NICOLAS MPONDA ......cccccrccsccecceneeenseeereesesacencseensenseenasenesneses 2NP DEFENDANT MAVUTO) BIZIWIEKL ........cccccceccsessceeteescensereesesusaanenesens saree senses 38? DEFENDANT CORAM: HONOURABLE JUSTICE TEXIOUS MASOAMPHAMBE Tandwe for the Applicants Chirwa for the Respondents Tepeka, Official Interpreter RULING INTRODUCTION Before me is an application by the defendants for an order staying or suspending enforcement of the order varying injunction which this Court granted to the claimant on 1 October 2021. The varying order prohibited the defendants or whomsoever from managing and operating Mirala & Mperesi Estate in issue herein, and from utilizing and exercising any control or ownership over the land, animals, vehicles, and any other property on this estate/farm. The varying order further ordered the defendants to immediately vacate the estate/farm, pending hearing of committal proceedings in this matter or a further order of the Court. Page 2 of 13 The application is brought under Order 10 rules 1, 5 & 30 and Order 28 rule 48 Order 10 rule of the Courts (High Court) (Civil Procedure) Rules and the Court’s Inherent Jurisdiction. The application was initially brought ex-parte to stay the interim relief that the Court granted to the claimant essentially asking the defendants to vacate the possession of Mirala and Mpelesi Estates in Machinga District held by the deceased estate of the late Brown Mponda under a conveyance registered as a number 79305 dated 3 1 December 2003 under section 26 of the Sheriffs Act. The defendants bring this application on the ground that the said order was obtained due to suppression of material facts, The defendants sought an urgent relief but this Court directed that the application come inter-partes. Factual Background By way of a conveyance dated 28 November, 2000, the claimant bought, at K2, 500, 000 (two million five hundred thousand Kwacha), a piece of freehold land, which is in issue in the matter herein, from the late Mr. Brown Amos Mponda (late Mr. Mponda), father to the 1 defendant. The late Mponda’s predecessor in title was Inde Financial Services Limited, through its receiver Sturdy Hawk Holdings Limited, Robert Neil Mathews. He acquired property in this land by way of a conveyance registered on 21* July 2000. He paid K2, 100, 000 for this land. It is said the claimant bought this land from the late Mr. Mponda about 5 months from the date of conveyance of this land by his predecessor in title to him. Sometime early 2002, the late Mr. Mponda commenced proceedings against the claimant in Civil Cause No. 679 of 2002 in the High Court, Principal Registry. He was claiming: (i) a balance of K2,000, 000 on the purchase price of the land; (ii) K300, 000 being 15% debt collection charges: and (ii) Gi) costs of the action. On 24" April 2002, the late Mr. Mponda obtained a default judgment from the Court. It was for a liquidated sum of money amounting to K2,300,000 plus interest at a rate to be determined by the Court and costs of the action. The interest and the costs are yet to be assessed by the Court. On 16" April 2003, the late Mr. Mponda filed with the Court his affidavit under section 26 of the Sheriffs Act (cap 3:05 of the Laws of Malawi). It is said this affidavit was part of a document of late Mr. Mponda registered with the Deeds Registry titled mortgage of 640 and 540 acres of land known as Mperesi and Mirala Estate under section 26 of the Sheriffs Act. He registered this affidavit on 30 May 2003 under Deed Registry no. 73905. Page 3 of 13 In 2015, the claimant obtained an order of injunction against the 1* and 2™ defendants because they had encroached on the land. They had been harassing the claimant’s employees on the land. They had also advertised it for sale. The 3" defendant was not a party to these proceedings at that point in time. The injunction generally restrained the I* and 27 defendant from trespassing/encroaching on to the land herein and from interfering with the claimant’s proprietary rights on the land. On 3 1% March 2021, the claimant, commenced committal proceedings against the 1% and 2"! defendants for their failure to comply with the injunction, The Court is yet to set a date to hear this application. On 4" April 2021, the 1* and 3" defendants obtained Letters of Administration which gave them authority to administer the estate of the late Mr. Mponda. On 13" August 2021 the said 1% and 3" defendants made an ex parte application and succeeded to obtain two orders namely; an order giving them permission to continue the proceedings in Civil Cause no. 679 of 2002, High Court, Principal Registry in their capacity as administrators of the estate of the late Mr. Mponda under Order 6 rule 25 of the Courts (High Court) (Civil Procedure) Rules, 2017 (CPR); and an enforcement order for possession of the land herein under Order 28 rule 37 of the CPR. This enforcement order, the defendants pleaded before the Court that it was meant to give effect to the default judgment of 24" April 2002, under which, they claimed, the land herein had been conveyed to the late Mr. Mponda on 31 December 2003. On 27" August 2021, the claimant made an inter partes application for stay of execution of the enforcement order only to be withdrawn later on 20 September 2021. Meanwhile, on 30" September 2021, the claimant filed and obtained an application for the protection of his moveable property on the land herein. On 1* October 2021 the claimant successfully applied and obtained a varied order of injunction. This order as aforesaid prohibited the defendants or whomsoever from managing and operating Mirala & Mperesi Estate in issue herein, and from utilizing and exercising any control or ownership over the land, animals, vehicles, and any other property on. this estate/farm. It further ordered them to immediately vacate this estate/farm, pending hearing of committal proceedings in this matter or a further order of the Court. The defendants now apply for this Court to stay or suspend the varied order of injunction. Parties Perspective Positions The defendants’ case The defendants applied for the stay or suspension of the varied order of injunction granted ex-parte on 1° October 2020 to the claimant on the ground that it was obtained by suppression of material facts. The defendants filed a sworn statement in support of the application to stay the order of the Page 4 of 13 injunction. The sworn statement was sworn by Felix Tandwe of Counsel for the defendants who told the Court that Agness Mponda and Mavuto Biziwick are Administrators of the Estate of Brown Mponda [deceased] in whose name the estates in issue are registered. Agness Mponda and Mavuto Biziwick were granted Letters of Administration for the claimant's estate on 4® April 2021. Counsel Tandwe further deponed that the deceased died on 25 May 2007 at St Joseph Hospital (Nguludi). He died intestate. Counsel then informed the Court that the deceased was the claimant in a matter domiciled at the High Court Principal Registry registered as Civil Cause No. 679 of 2002 against Dr R. A. Sulaimana in which a judgment was entered in the deceased's favour on 24 April 2002 for the sum of MK2,300,000.00 including collection costs. By way of enforcement of the said judgment under section 26 of the Sheriffs Act, freehold land measuring 1,040 acres known as Mpelesi and Mirala Estates in Machinga District belonging to the defendant was transferred to the claimant under conveyance number 79305 dated 31 December 2003. Counsel Tandwe further deponed that the Administrators proceeding on behalf of the deceased obtained an enforcement order for possession against the claimant herein on 13" August 2021. The claimant herein applied ex-parte to the court in that matter to stay execution of the said order for possession but the Court directed that the application should come inter-partes. The claimant then took out an inter-partes application for stay of execution of the said order for possession which was served on them on 3“ September 2021 and the matter was scheduled to be heard on 8" September 2021. When the matter was called for hearing on 8° September 2021, the claimant's lawyer, Counsel Kondwani Kumitengo, requested for an adjournment of the application. The Court therefore adjourned the matter to 20" September 2021. When the matter was called for hearing on 20" September 2021, the claimant withdrew his application. The Court allowed the withdrawal on the condition that the claimant should pay the other party, party & party costs occasioned by the claimant's withdrawal of his own application which costs were to be agreed by the parties failing which they were to be assessed by the Court. Counsel Tandwe then informed the Court that meanwhile the order for possession was fully and completely enforced or executed when Agness Mponda and Mavuto Biziwiki took possession of the estates through the Sheriff of Malawi on 29" September 2021 after the 30 days which Dr R. A Sulaimana was given, in the order for possession had expired. He further told the Court that on 30" September 2021, the claimant requested the Court to be allowed to have a few of his servant on the estate to take care of his property including livestock only for a period of 30 days which the Court allowed. Counsel Tandwe averred that his clients were therefore surprised that on and October 2021 the élaimant's brother [Mr. Sudi Sulaimana] brought to the estate a copy of this Court's said order essentially requiring the said Agness Mponda & Mavuto Biziwiki to vacate the estate after the issues relate to the estate had already been resolved in the other matter at the Principal Registry. He was further told by his clients that on 2™4 October 2021 Mr. Sudi Sulaimana Page 5 of 13 came along with a lorry full of scary looking young men apparently to scare off his clients’ servants who are stationed at the estate. He was forcing them to immediately vacate the estate without first serving the order on the defendants. In the premises Counsel therefore submits that it is clear that in his application the claimant did not disclose to this Court what had transpired in the other matter at the Principal Registry because if he had so disclosed, it is very unlikely that this Court would have granted him ex-parte the said order varying injunction dated 1* October 2021 which contradicts the order earlier granted at the Principal Registry. Counsel Tandwe argues, in the interest of justice, consistency and orderly management of the matters before the two courts, it is imperative that the order of 1 October 2021 granted by this Court be stayed or suspended. The claimant’s case The claimant opposes the application for stay or suspension of varied order of injunction and therefore filed a sworn statement in opposition to the defendant’s application sworn by Timothy John Chirwa of Counsel for the claimant. Counsel Chirwa deponed and gave the Court the factual background as elucidated above. Furthermore, Counsel Chirwa averred that the claimant bought the land in question from late Mr. Mponda about 5 months from the date of the conveyance of the land by his predecessor in title to him. On acquiring this land, the claimant proceeded to occupy and use it without any adverse claim from any person. He was able to do so through his employees and agents. He was resident in the United States of America (USA) at that point in time, where he still is presently. The late Mr. Mponda only commenced Civil Cause No. 679 of 2002 in the High Court Principal Registry against the claimant about one and half months after he had conveyed the land to the claimant. The claimant was not in the country at that time, but in the USA. He was not personally aware of the proceedings. Counsel Chirwa further told the Court that on 16" April 2003, the late Mr. Mponda filed with the Court his affidavit under section 26 of the Sheriffs Act (cap 3:05 of the Laws of Malawi). Observably, this affidavit was part of a document of late Mr. Mponda registered with the Deeds Registry titled mortgage of 640 and 540 acres of land known as Mperesi and Mirala Estate under section 26 of the Sheriffs Act. He registered this affidavit on 30" May 2003 under Deed Registry No. 73905. In that affidavit, the late Mr. Mponda deponed that (as of the date of that affidavit) full execution had been levied against the claimant's movable property in satisfaction of his judgment debt of K2, 300, 000, including further collection charges. Noticeably, he omitted to specify as to whether it was the Sheriffs’ office which had executed the judgment or it was some other person who had done so. He also omitted to specify as what had been levied upon; and of what value. However, he proceeded to further depone that the full sum of K2, 300, 000 was still due and payable from the claimant to him, as well as statutory interest at 5% per annum with effect from 24% April 2002. Page 6 of 13 Counsel Chirwa further averred to the Court that in 2015, the claimant obtained an order of injunction against the 1* and 2" defendants in the matter herein. The injunction generally restrained the 1% and 2" defendants from trespassing/encroaching on to the land herein; and from interfering with the claimant's proprietary rights on this land. To date, the said injunction has not been set aside or otherwise discharged or varied and as such remains in full force. As of 2015, the claimant was not aware of the court proceedings which the late Mr. Mponda had commenced against him; or that he owed him anything as claimed; or that the late Mr. Mponda had obtained a default judgment in the matter and had filed as well as registered his affidavit under section 26 of the Sheriffs Act as stated in the preceding paragraphs. He became aware of these matters only when the 1°* and 3" defendants had, on 13 August 2021, obtained an enforcement order for possession of the land herein. To this assertion, the defendants deny and told the Court that the claimant on 30" July 2004 commenced an action against the late Mr. Brown Mponda registered as Civil Cause No. 2203 of 2004 at the Principal Registry of the High Court in which the claimant sought to obtain an injunction restraining Mr. Brown Mponda deceased and H. J. Downs (1962) Limited [Auctioneers] from selling the said two estates, Mpelesi and Mirala. The Court appointed 17" August 2004 for the inter-partes hearing of the application for injunction by the claimant. Counsel for Mr. Brown Mponda deceased prepared an affidavit (sworn statement) in opposition to the said inter-partes application for injunction. However, a few days before the said inter-partes hearing, the claimant filed with the Court and then served on the late Mr. Brown Mponda a Notice of Discontinuance of the action. It is clear from the preceding paragraphs and the affidavit of Counsel Mphenzi that the claimant was all along aware of the matter at the Principal Registry and that the claimant is again trying to mislead the Court by not being truthful on the issue. Counsel Chirwa then told the Court that on 31° March 2021, the claimant, through Messrs. Reginald Attorneys commenced committal proceedings against the 1% and 2"! defendants for their failure to comply with the injunction. The Court is yet to set a date to hear this application. On the defendants’ application for an enforcement order for possession of land this order was not served on the claimant personally as he was still not in Malawi at that material time. Counsel then informed the Court that when his client was informed of the enforcement order of possession, he instructed his then legal representatives Messrs. Reginald Attorneys to respond to the order; while simultaneously pursuing his committal proceedings against the defendants, an application which he had previously made on 31 March 2021. On 27" August 2021, Messrs. Reginald Attorneys made an inter-partes application for stay of execution of this enforcement. They made this application under the Court's inherent jurisdiction. The Court set 8" September 2021 for the hearing of this application. In his Sworn Statement, a copy of which was exhibited as part of the document marked as FT 6 in the defendants’ Sworn Statement, the claimant averred that all along he was not aware of the default judgment, the summons on which was based, any other court process in the matter herein. He did plead that, whereas a Process Server for the late Page 7 of 13 Mr. Mponda’s then Legal Practitioners had claimed to have served the summons on him (when he was out of the jurisdiction) through post. However, he was not served. Postage of the court process had been sent to a wrong address. Counsel Chirwa further averred to the Court that on the claimant’s application for suspension of enforcement order of possession, the claimant replaced Messrs. Reginald Attorneys with Counsel Kondwani Kumitengo of KK Attorneys who before hearing this application formed a view that the claimant's application for the stay, as made by Messrs. Reginald Attorneys, had little prospects for success. It occurred to him that this application (made under the Court's inherent jurisdiction) was made without stating that it was pending a further application for an order setting aside the default judgment herein, when they ought to have done so. He further formed the view that success of the application for the stay was contingent on prospects of success of the intended application for an order setting aside the default judgment. To him, there were no real prospects of success of this late application, considering the years that had gone by from the date of the judgment. In the premises, he made an application on behalf of the claimant for withdrawal of the application for the stay. The Court granted him that order on 20" September 2021. Counsel then told the Court that on 30" September 2021, Counsel Kumitengo filed an application and obtained an application for the protection of the claimant's movable property on the land herein. Besides, he started preparing another application for suspension of the enforcement order under Order 28 rule 48 of the CPR. This application has been pended, for the time being, until hearing and determination of the present application. The claimant was not able to closely follow what his Counsel was doing. He had no direct link with him. Being outside the jurisdiction, his relatives, laymen, were the ones in touch with his Counsel. He had no clear picture as to what was happening. Dissatisfied with the manner in which his matters were being handled, he appointed Counsel Timothy John Chirwa to now act on his behalf in place of Counsel Kumitengo. Counsel Chirwa thus told the Court that on reflection, the claimant realized that the claimant's application for an enforcement order for possession of land was irregular in view of the fact that there was an injunction granted by this Court in 2015 which was prohibiting the defendants from essentially exercising any proprietary rights in relation to the land herein. Yet, the enforcement order was effectively giving them the right to possess the land in violation of the terms of the injunction, On 1* October 2021, this Court granted him a varied order of injunction. In essence, this varied order of injunction is an extension of, and provides more specificity, to the original injunction granted in 2015. The Law and Analysis Page 8 of 13 The present application by the claimant was brought under Order 28 rule 48 of the Courts (High Court) (Civil Procedure) Rules which provides as follows: “An enforcement respondent may apply to the Court for an order suspending the enforcement of an order.” Counsel for the defendants rightly submits that the procedure for an application for stay of enforcement is provided under Order 28 rules 49 and 50 of the CPR: “49. The application under rule 48 shall be supported by a sworn statement and shall be filed and served on the enforcement creditor at least seven days before the application is to be heard. 50. The Court may- (a) suspend the enforcement of all or part of the order because facts have arisen or been discovered since the order was made or for other reasons; and (b) make other orders it considers appropriate, including another enforcement order.” (Emphasis supplied) Counsel for defendants argues and submits that in the present matter, the order he seeks the court to stay was obtained ex-parte by the claimant. In ex-parte application an applicant has an obligation to make full and frank disclosure of all relevant matters even those that are adverse to him so that the Court makes a correct or just order. In his application, the claimant did not disclose to the Court all relevant factual matters such as the fact that there was already a High Court order for possession in favour of the defendants under which he had been evicted from the same estate from which he was asking the Court to evict the defendants. Counsel Tandwe relying on several local case authorities; State v Council of the University of Malawi (2008) MWHC 88; Maida v Maida et al (2003) MWHC 76; Longwe v Council of the University of Malawi [2010] MLR 149 and Chikumbanje v Indefund Ltd (2003) MWHC 31, argues and submits that the failure to disclose a previous action on the same subject matter on which a court adjudicated is suppression of material facts which should undermine an injunction obtained ex parte. The suppression of the said facts deprived the court material facts on which to exercise its power to grant or deny the application before it. The defendants’ Counsel contends thus in the present matter, they have no doubt that had the claimant disclosed the fact that there was another matter in the High Court Principal Registry in which an order was granted under which possession of the very same estates was taken from the claimant and given to the defendants herein, Page 9 of 13 the Court would have likely asked him to bring the application inter-partes so that the Court could appreciate the issue from the Defendants’ perspective. The defendants therefore move this Court to deal with this application with due dispatch in the circumstances to avoid creating chaos and confusion. The defendants argue there are two contradicting orders on the same subject matter and there is need to set the record straight by staying and setting aside the order which the claimant obtained herein on 1* October 2021. Leaving the impugned order on the Court file for even one more day is like rewarding the claimant for misleading the Court by suppressing the fact that the matter was already adjudicated upon by the Court in Blantyre where the Claimant was duly represented by Counsel. On the other hand, the claimant argues and submits that on discharge or variation of an injunction, the position at law is that it is always open to an opposing party, where an interlocutory injunction was granted ex-parte, to apply to the court for its discharge on the ground that there had not been frank and full disclosure of all material matters of both fact and law. See State v Malawi Communications Regulatory Authority and Joy Radio Limited HCPR Judicial Review Cause No. 29 of 2011 (unreported). In Andipesa Maselula Mhango v Mr. Chabwera, Land Case No. 13 of 2018, High Court, Principal Registry, (unreported), the Court held that the question, in deciding whether the person who obtained an injunction suppressed material, is whether the claimant made a reasonably full and possible disclosure in making the application. Counsel for claimant further argues and submits that at this juncture, it is not for the Court to resolve the issue of who owns the land herein. This is not a stage at which the Court has to necessarily settle the matter on the strength of evidence. See Mangulama and Four Others v Dematt Civil Cause No. 893 of 1999, Chalo Ng'ambi TIA Chalo Ng'ambi Investments v BP Malawi Limited [2006] MLR 295(HC). 3.7. On the issue of adequacy of damages, the Court had this to say in the Andiyesa Mhango case, (supra): "If her claim is justifiable, her interest in the land might hardly be met by damages. It has been said that issues of land are so unique that damages might not usually be a remedy as adequate as possible". The claimant’s Counsel therefore contends that in the present case, the claimant has shown that there remains some serious questions for the Court to decide such: i. Did the affidavit which the late Mr. Mponda file and register under section 26 of the Sheriffs Act have the effect of conveying the land herein from the claimant to him as alleged by the defendants? Page 10 of 13 ii. What is the true nature of the charge which is created in favour of a judgment creditor under section 26 as read with section 29 of the Sheriffs Act; what are the rights of a chargee and chargor thereunder? iii. Cana default judgment herein be set aside? and iv. In the event that the default judgment cannot be set aside, what is the true amount of the judgment debt which the claimant owed the late Mr. Mponda under the terms of the default judgment, as of the date of his filing or registering his affidavit herein, or as of today? Counsel Chirwa representing the claimant contends and submits that in the premises, the justice of the matter requires preservation of the status quo ante until these questions are definitively determined by this Court. He further contends and submits that at this point in time it is not for the Court to definitively decide as to who has title to and owns this land; or whether, indeed, it is the defendants and not the claimant who truly has the right to possess this land. However, at this point in time, it is open to the Court to form a provisional view as to the prospects of success of the claimant's claim for ownership and title over this land. Indeed, the evidence in the affidavit of the late Mr. Mponda filed and registered under section 26 as read with section 29 of the Sheriffs Act shows that the nature of the transaction was not a conveyance of the land in his favour. Rather, it was a mortgage which vested in him rights of a charge, but still recognized the claimant's rights as a chargor. Further, Counsel argues that it is apparent that the enforcement order for possession of land which the defendants obtained in this matter is defective. The defendants misled the Court into believing that the land was theirs. They pleaded that, by virtue of the affidavit of the late Mr. Mponda herein, there was a conveyance of the land in favour of the said late Mponda when that was not the case. This assertion was based on an error of fact and law. Counsel further argues that the enforcement order for possession of land herein is also defective on account of the fact that it has the effect of varying or setting aside the order of injunction herein as granted in 2015. It is self-evident that it was issued by a Registrar, His Honour Kacheche. It was made after the injunction herein was granted in 2015 by a Judge, Honourable Justice Ntaba. It goes without saying that a Registrar has no power to make an order setting aside or varying an order made by a Judge. Arguably, this order has that effect by giving the defendants the right to possess the land when the injunction prohibited them from trespassing on the land, which was essentially a prohibition against exercising any proprietary rights, particularly the right to possess, this land. Given the foregoing, the claimant submits that his forthcoming application for suspension of this enforcement order for possession of the land has real prospects for success. At the outset it must be stated that the defendant’s Counsel replied during the oral hearing against the above assertion by submitting that the order of injunction obtained on 14" April 2015, expired Page 11 of 13 on 15 May 2015. Handwritten notes of Justice Ntaba, showed that the injunction was granted subject to four conditions: i. It was valid for 21 days and the 21 days expired on 15% May 2015; ii. The Honourable Judge directed that the inter-partes be heard within 7 days and the same expired on 22"4 April 2015. Infer-partes was filed on 30 April 2015. iii. | Originating process to be filed and served within 14 days from the order that expired on 25" April 2015. They filed on 30" April 2015 and service was on 9" May 2015; and iv. The claimant to expedite the matter. The defendant’s Counsel submits the claimant has done nothing from 2015, six years ago. Counsel for the defendants therefore argues that claimant should not have brought an application to vary the order of injunction which was never there. Counsel for the claimant further submits that it has been shown in the claimant’s sworn statement that the status quo ante was that it was the claimant who has been in occupation and use of the land all these years since 2002 and that a fact is material if its disclosure would have made the Court not to grant the injunction. It should be of such a nature that it would have made a difference; that the injunction could not have been granted had it been disclosed. In the present matter, it has been shown that this Court granted the claimant an injunction originally in 2015, The injunction is still subsisting today. The varied order of injunction which the claimant obtained from this Court on 15" October 2021 simply restated and extended, and provided specificity, to this original injunction. At the time the defendants made an application for this enforcement order, they were aware of the 2015 injunction. They did not disclose that fact to the Court when they were making the application. In conclusion, the claimant’s Counsel prays for an order for the continuation of the injunction; and for a further order dismissing the defendants’ application, with costs of the present application to the claimant. Determination At the outset this Court must resolve the issue of the applicable law in this matter. The claimant in his submission seems to be driving this Court to principles pertinent to interlocutory injunction as provided under Order 10 rule 27 of the CPR. However, it is clear from the defendant’s application that it is brought under Order 10 rule 1 as read with Order 28 rule 48. In other words, the application herein is premised on staying an enforcement order granted by the Court. Of course, I do acknowledge that this application is intertwined with the varying order of injunction which this Court granted ex parte. Nevertheless, the defendants are not applying to discharge such varying order of injunction but staying or suspending its enforcement under 28 rule 48 of the CPR. Arguably, the defendants are of the firm belief that initial order of injunction which the claimant obtained in 2015 expired. As such, the same cannot be varied by the Court. It is on the basis on this wrong assumption that the claimant has proceeded to argue as if the application brought by the defendants is discharge of the varied order of the injunction granted on the 1* October, 2021. Page 12 of 13 I therefore should find that the present application by the claimant was rightly brought under Order 28 rule 48 of the Courts (High Court) (Civil Procedure) Rules and the Court will proceed to determine it as such. It is trite that the procedure for an application for stay of enforcement is provided under Order 28 rules 49 and 50 of the CPR: “49, The application under rule 48 shall be supported by a sworn statement and shall be filed and served on the enforcement creditor at least seven days before the application is to be heard. 50. The Court may- (a) suspend the enforcement of all or part of the order because facts have arisen or been discovered since the order was made or for other reasons; and (b) make other orders it considers appropriate, including another enforcement order.” (Emphasis supplied) This Court agrees with the defendants that the fact that an order of possession was granted to the against the claimant is a material fact that should have been brought to the attention of this Court. The suppression of the said facts deprived the court material facts on which to exercise its power to grant or deny the application before it. Indeed, in the present matter, there should be no doubt that had the claimant disclosed the fact that there was another matter in the High Court Principal Registry in which an order was granted under which possession of the very same estates was taken from the claimant and given to the defendants herein, the Court would have likely asked him to bring the application inter-partes so that the Court could appreciate the issue from the Defendants' perspective. Furthermore, it is not for this Court to advise Counsel that the way forward was to apply before the same Court in order for the enforcement order of possession to be stayed or set aside. The irony is the claimant had applied before the Court in Blantyre to stay the enforcement order of possession but only later on to withdraw it. Indeed, Counsel's opinion on the regularity of the order for possession obtained by the defendants on 13" August 2021 and the proceedings generally in that other matter, these are issues which the claimant should have raised when he applied for stay of the order for possession but instead of doing so he withdrew his application. It must be mentioned further that, this Court is not called upon to review the order of enforcement order of possession granted to the defendants. The claimant’s arguments do essentially call upon this Court to stay an order that was validly granted. Indeed, by continuing to sustain the varying Page 13 of 13 order of injunction this Court stays another order of the High Court which was duly granted. As to the argument that at the time the defendants made an application for this enforcement order, they were aware of the 2015 injunction, conveniently they did not disclose that fact to the Court when they were making the application. I am of the view that this should have been the reason for the claimant to apply before the Registrar to set aside the enforcement order of possession. It is not for this Court to review the order of the Registrar through this application. The claimant can apply to have the same set aside and if refused his Counsel should be able to ably advise on the next proper course of action to take. In any event, it is this Court’s finding that the 2015 injunction order granted to the claimant indeed expired. An interim injunction granted with conditions cannot continue to subsist especially after the failure of the applicant to fulfill its conditions as granted by the Court. See Mapeto DWHSM Ltd v Karim and Others (Land Matter No. 22 of 2019) [2019] MWHC 112 (13 May 2019). Therefore, the order that I granted on 1 October 2021 must be suspended which I now do. In the circumstances the varied order of injunction has no legs to stand on. It was premised on the order of injunction which duly expired six years ago. In the final analysis, the order of varying order of injunction herein is therefore suspended with costs to the defendants. Made in Chambers this Friday, the 19" day of November, 2021 at Zomba. erphae Texious S Masoamphambe JUDGE