T-Shirt Manufacturing Industries v Commercial Bank of Malawi (Civil Cause 623 of 1993) [1993] MWHCCiv 56 (19 May 1993)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 623 OF 1993 BETWEEN: T-SHIRT MANUFACTURING INDUSTRIES.......e000cc0eecces PLAINTIF? -~ and - COMMERCIAL BANK OF MALAWI LIMITED......ccecececces » DEFENDANT CORAM: TAMBALA, J. Maulidi, ef Counsel, for the Plaintiff Sauti Phiri, of Counsel, for the Defendant Official Interpreter, Mthukane This is the defendant's application to vacate an order of interim infunction which I made on 13th May 1993. It was intended tc 2 ex-parte. However, by agreement between Counsels of k-th plaintiff and defendant, the actual hearing of the appl.cation was inter-partes. Counsel for the Gefencant swore an affidavit in support of the application. The plaintiff maintains a bank account with the defendant at its Livingstone Avenue Branch in Limbe. On 22nq April 1993, the defendant transferred K169,000 from the plaintiff's account to its International Department. The funds were intended to be used as part-payment for Bill of Buchenge No. 92/76 for DM70,007.72. The plaintiff claimed that he was unaware of the reason for the transfer of the funds. He contended that the transfer was unauthorised ané it was effected without his knowledge or consent. It was Said that he issued a number of cheques against his account ana he feared that they would be dishonoured. He argued that the conduct of the defendant would cause him irreparable Camage. It was on the basis of these facts that I granted an order for interim injunction which wes valid for 10 Gays. The affidavit in support of the present application shows, inter alia, that the defendant received a collection order from ABN Bank in Germany and in the execution of that order it presented to the plaintiff on 16th January 1992 Bill of Exchange No. 92/76 for his acceptance. The plain .iff accepted the bill on 10th February 1992. It was for payment of goods supplied to the plaintiff. On 27th April 1992, the defendant obtained Exchange Control approval to remit the funds to th bank in Germany on behalf of the Mic nal le BA Se fey f plaintiff. On 27th July it remitted the money toe Germany. There was, unfortunately, no local currency cover provided by the plaintiff and this was made possible by a fraud committed by an employee of the defendant in collaboration with the plaintiff or his agent. The local currency equivalent of the money remittec by the cefendant to Germany comes to K1i89,284.81. The amount of K159,000 transferred to the dGefencdent's International Department was intended to meet part of the money remitted to Germany. If it is true that goods from a foreign supplier have en received by the plaintiff anc that the defendant fected payment for them in foreign currency without the plaintif£t providing the local currency ecvivalent of the remitted funds. it would be ineguitasle for me to compel the defendant to pay back into the plaintiff's account the money which was transferred to the defendant's International Department. The plaintiff cannot keep the goods anc use them for his own benefit without paying for them. An orcer for injunction is granted upon the Court's exercise of its Giscretion. In the exercise of that discretion the Court is quided by equitable principles. In the present case there would be no justification for the bank to suffer the loss while the plaintiff retained the goods and probably usec. them in furtherance of his business. This Court wovld not, in equity, assist a plaintiff who wants to take advantage of an errer or mistake committed by another person to the Getriment of that other person. A person who seeks the assistance of the court of equity must come to that court with good intentions. In the present application it is not my intention to Gecice whether or not the plaintiff furnished the local currency cover for the remittance which the defendant made in connection with the promisscry note accepted by the plaintiff. That will be one of the crucial issues likely to be dGacided in the main action and a decision on it at this steg2 may have prejudicial effect on the outcome of that action. However, it is possible that the plaintiff has not paic K1E9,284.81, the proceeds of the bill of exchange which he accepted and on that basis it would be unjust for me to compel the defendant to transfer the K1i69,000 back into his account I am of the view that this application must succeed. The order for interim injunction which I grantec on 13th lay 19°3 is hereby Gischargec. The plaintiff shall pay the costs of this application. MADE in Chambers this 19th day of May 1993, at Blantyre. KC se . 4 i ey te Tambala JUDGE | eed i C shale