IN
THE HIGH COURT OF MALAWI

LILONGWE
REGISTRY

CIVIL
CAUSE NO 1219 OF 2005

BETWEEN

CHIGONEKA
PRIMARY SCHOOL ………………..PLAINTIFF

PARENTS
COMMITTEE

-and-

C.C.A.P.
NKHOMA SYNOD…………….……………………………..DEFENDANT

(EDUCATION
SECRETARIAT)

CORAM HON.
JUSTICE A.K.C. NYIRENDA

Mr
Tambulasi; Counsel for the Plaintiff

Mr
Dzonzi; Counsel for the Defendant

Mr
Baziliyo; Court Interpreter

R
U L I N G

HONOURABLE
JUSTICE A.K.C. NYIRENDA

This
is an application by the plaintiff for an order of interim injunction
pending the determination of the substantive action
whereat the
plaintiff seeks various and several orders against the defendant
including and order of permanent injunction to restrain
the defendant
from taking over a school, Chigoneka Primary School, in the City of
Lilongwe.

A
very brief factual background to the matter is that the defendants
have takeover the school from Government and wish to run it
as a
private school. One of the issues that would have to be determined
in the substantive action is the ownership of the school
but what
seems to have happened is that Government has withdrawn its services
at the school including removing some teachers to
give way to the
defendant’s operations who has meanwhile started demanding high
fees which come with operations of private schools.

The
mainstay of the plaintiff’s case is that the defendant’s actions
have resulted in depriving the plaintiff’s children
to the right to
education since most parents in the area who send their children to
this school cannot afford the fees set by the
defendant.

It
is tempting to immediately deal with this matter on merits because in
submitting for and against the injunction virtually all
the vital
issues have been exposed. Furthermore the matter is urgent, as I
see it, because it is about children who should by
now be at school
or are about to start school.

I
have resisted the temptation and will merely rule on the interim
injunction. I hope the main matter will be dealt with fairly

quickly. It has already been set down for the 18^th
January 2006; hopefully the judge before whom the matter has been set
will also see the urgency that I see in it.

The
position as it is now is this. The plaintiffs are not in use of the
school because the defendant has already moved in.
Granting the
injunction sought would mean stopping any activity at the school
because it would be unreasonable to imply by the
injunction that the
defendant stops whatever is going on and let the plaintiff move in
until the determination of the action and
what if the odds turn
against the plaintiffs. We would have caused not just a confusion
but total mess of the situation.

I
believe the lesser of the evil is to allow the few children that
might have braved private fees to continue and if the school
was left
for the plaintiff they would soon be joined by the rest of their
friends.

I
therefore decline to grant the injunction sought. I wish to repeat
that I hope as a court we can expedite this matter and determine
it
very soon.

Let
me just add that this case is typical of a case that is better
resolved by way of consultation and discussion among all those

concerned. I would encourage such a process because what is true is
that both the plaintiff and the defendant want to run the
school for
a common cause and interest, the education of children in the
locality.

I
am reluctant to penalize the plaintiffs in costs in the nature of
this matter and also seeing that they are Legally Aided litigants.

PRONOUNCED

in Chambers at Lilongwe High Court this 13^th
day of January 2006.

A.K.C.
Nyirenda

J
U D G E