IN
THE HIGH COURT OF MALAWI

LILONGWE
REGISTRY

CIVIL
CAUSE NO 972 OF 2005

BETWEEN
:

F.J.
BARRON ………………………………………………..
PLAINTIFF

-and-

REGISTERED
TRUSTEES OF THE TOBACCO….1^ST
DEFENDANT

ASSOCIATION
OF MALAWI

ACHIKUMBE
LIMITED …………………………..2^ND
DEFENDANT

CORAM

: HON. JUSTICE A.K.C. NYIRENDA

Mr
Kalasa; Counsel for the Plaintiff

Mr
Theu; Counsel for the Defendant

Baziliyo;
Court Interpreter.

J
U D G M E N T

NYIRENDA,
J.

The
plaintiff herein obtained exparte, an interlocutory order of
injunction restraining the defendant from repossessing items of

furniture now in possession of the plaintiff in Kasungu.

The
whole case is about the plaintiff’s employment with the defendants.
At the centre of the matter is the determination of
who as between
the 1^st
and 2^nd
defendant actually employed the plaintiff and who was entitled to
disengage the plaintiff if it came to that.

As
part of the plaintiff’s employment he was provided with items of
furniture to use in the house he was staying. The plaintiff
was
entitled to other benefits such as a vehicle for official use. It
is not immediately clear to this court under what conditions
the
furniture was given to the plaintiff. Paragraph 8 of the
plaintiff’s affidavit in support of the injunction states:-

“THAT
the
Plaintiff avers that upon his engagement he was given some furniture
such as a Lounge suite, coffee table with 4 stools, a display
unit, 3
single beds and mattresses and 1 double bed and mattress and a motor
cycle which the 1^st
Defendant has formally demanded to be returned to them. Copy of the
letter is shown to me and marked “KRK5.”

In
his statement of claim one of the relief’s sought by the plaintiff
is an injunction where it is said:

“The
plaintiff claims an injunction restraining the defendant from
repossessing all furniture items entrusted to the plaintiff.”

I
have been trying, from all these statements, to comprehend whether it
is the plaintiff’s position that the furniture is his
by virtue of
his engagement or that he is entitled to hold on to the furniture
until the whole matter is resolved. It would appear
the latter is
what he is trying to do because in his affidavit in opposition to
this application the plaintiff contends that setting
aside the
injunction would disentitle him to benefits which the contract
expressly provided. And in the plaintiff’s defence
to the 1^st
defendant’s counterclaim it is stated that neither the furniture,
motor cycle nor the house could be surrendered unless his employment

with the 1^st
defendant was formally terminated. In other words the plaintiff
believes he is entitled to the employment benefits until the wrangle

between him and the defendants is resolved and determined by this
court.

The
application before me is for an interlocutory injunction. It is now
virtually cast in the clearest of terms that it is not
for an
interlocutory injunction to determine the merits of the case. The
purpose of an interlocutory injunction is to preserve
the status quo
of the matter awaiting the disposal of the case, see American
Cyanamid v Ethicon Ltd [1975]AC 936.
In trying to maintain the status quo a court is guided by a number
of considerations which are largely spelt out in the American
Cyanamid case.
By and large the grant and refusal of an injunction is on a balance
of justice, previously said to be balance of convenience.

Depending on which way the scale tiples, justice demands that the
court achieves and secures an equilibrium that will safeguard
the
outcome of the matter when it is finally disposed.

With
these principles in mind and going back to the very brief facts of
this case outlined above it is apparent that the altercation
between
the plaintiff and the defendants is contractual and by the
plaintiff’s own statement of claim what he would have lost
at the
end of the whole matter, if it came to that are (a) loss of salary to
the expiry of the 3 years he was to be in employment
(b) loss of
terminal gratuity (c) costs of this action.

It
is here that I should refer to yet a critical issue in considering
the balance of convenience. Again it is well established
that even
in deserving cases an interlocutory injunction will not ordinarily be
granted if the case is such that an award of damages
will properly
and sufficiently redress the applicant and the defendant would be in
a position to pay, see Fellowes
and Son v Fisher [1976]1 QB, at 137.

As
pointed out above the plaintiff’s claim is for damages specific and
general. I have no reason to think that the defendants
would not be
in a position to pay damages. Nothing of that sort has been
suggested by the plaintiff. On these considerations
I would vacate
the injunction herein, which I do.

I
should however state that it is not correct that the injunction was
obtained on suppression of facts to warrant an inquiry into
damages.
Having been obtained exparte, it might well be that there was no
exhaustive consideration of the available facts.

The
plaintiff is condemned in costs of this application.

MADE
in Chambers at Lilongwe this 19^th
day of January 2006.

A.K.C.
Nyirenda

J U D G E