IN
THE HIGH COURT OF MALAWI

LILONGWE
REGISTRY

CIVIL
CAUSE NO 387 OF 2005

BETWEEN
:

CATHERINE
SANI & RABECCA SANI

(Suing
on their own behalf as dependants

and
representing the other dependants of the

estate
of BENEDICT JONAS SANI and

MRS
MULEUMBET M. SANI (deceased) ……………..PLAINTIFF

-and-

SHABS
CARRIERS ……………………………….1^ST
DEFENDANT

ROYAL
INSURANCE COMPANY LTD ……….2^ND
DEFENDANT

CORAM : HON.
JUSTICE I.C. KAMANGA (MRS)

Kaphale;
Counsel for the Plaintiff

Mapila;
Counsel for the Defendant

Chulu;
Court Interpreter

R
U L I N G

HON.
KAMANGA (MRS), J.

This
is the defendant’s summons moving this court to withdraw an Order
that was issued by the court on 15^th
February 2006 for the defendant to furnish security within a seven
day period in default to wit the first defendant’s property
was to
be attached. The application is made under Section 14 of the Courts
Act.

This
is the background to the application. By a specially endorsed writ
of summons that was issued by the court on 19^th
April 2005, the plaintiffs claim damages for loss of dependency and
damages for loss of expectation of life in respect of an accident

that occurred along the Lilongwe Dedza Road on 28^th
December 2003 in which the plaintiffs lost both parents. The
defendants deny the claim. The matter has advanced to a stage that

as at now, it is ready for hearing. On 15^th
February 2006, the plaintiff made an exparte application for an order
requiring the defendant to furnish security, or, an order
of
attachment before judgment. The application was made under Section
14(3) of the Courts Act (Cap 3:02). Upon going through
the
documents, the court granted the prayer sought. In the formal order
it was articulated as follows:-

“………. It is
hereby ordered that within 7 days from the date of this order the 1^st
defendant do furnish such security with this court as would cover the
sum of K51 million damages and K1.5 million legal costs and
that in
event of default, the following properties held by the 1^st
defendant BE and ARE hereby attached until further order …..”

The
order goes on to list the properties that should be attached. On the
21^st
February 2006, the 1^st
defendant made an exparte application for stay of the order pending
application for withdrawal of the order. The court ordered
that the
application should be made inter-parties. It has not been heard.
On the same day, of 21^st
February 2006, the first defendant filed summons for the withdrawal
of the order of attachment that had been issued on 15^th
February
2006. This is the subject of this ruling.

Section
14(1) of the Courts Act provides that in a civil action or suit, if
the High Court is satisfied by evidence on oath that
the plaintiff
[a]
has a good cause of action and that [b]
the defendant, with intent to obstruct, defeat or delay the execution
of any judgment that may be given against him, has disposed
or is
about to dispose of his property ……. [or
has in any way negatively dealt with the property against the
plaintiff’s interest]
[c]
at any time after the issue of the writ, the court may order the
defendant to furnish security for such amount as it may deem fit,
or
in default may direct that any property of the defendant be attached
until further order.

Section
14(3) provides a recourse for a defendant who is aggrieved with an
order obtained under Section 14(1) in the following
terms:-

“……… the court
may at any time order the

attachment to be with
drawn.”

Before
dealing with the substance of the application that has been made by
the defendant there is need to look at the sequence
of events that
transpired in the matter to assist the court to come up with the
requisite verdict. If the events are scrutinized
chronologically,
one notices that upon receipt of the order of 15^th
February 2006, the defendants sought to move the court in two
manners. By an exparte summon to stay the order pending application

for withdrawal as well as though the inter-parties summons which is
the subject of this ruling. It is worth mentioning that by
the
ex-parte application the defendant had sought to stay the execution.
And the court ordered that application to stay be made
inter-parties.
In making such order that application be made inter-parties, the
order of 15^th
February 2006 did not cease to operate. Yet no action was made by
the 1^st
defendant to facilitate the inter-parties hearing of the application
of stay of execution. Now we have the application for the
withdrawal
of the order. The 1^st
defendant has up to now not carried out the order of 15^th
February 2006. By their own conjecture the 1^st
defendants have sought to construe the order for an inter-parties
hearing as an order of stay. That is jumping the gun and getting

into others’ protected territory. The others herein shall mean
the court. Until the court orders expressly on status of an
order,
no legal chamber has any mandate to construe court’s intention even
in matters where the legal chamber is conversant with
the legal
process and clearly knows that as per the facts that appear the
obvious decision will be a withdrawal. So I quote Romer
C.J. in
Hadkinson
vs Hadkinson
1952 2 All ER @ 569
as cited in Isaac
vs Robertson
1984 3 All ER @ 142
where it was noted that :-

“it is the plain and
unqualified obligation of every person against, or in respect of whom
an order is made by a court of competent
jurisdiction to obey it
unless and until that order is discharged. The uncompromising
nature of this obligation is shown by the
fact that it extends even
to cases where the person affected by an order believes it to be
irregular or even void.”

I
will also labour to state that since the 19^th
Century in Chuck
vs Creamer
1846 1 coop temp coH 338 @ 342,
it was noted that the court’s territory ought not be trodded by
others that are not on the bench in the following terms:-

“A party, who knows of
an order, whether null or valid, regular or irregular cannot be
permitted to disobey it ……. It would
be most dangerous to hold
that the solicitors, or their solicitors, could themselves judge
whether an order was null or valid –
whether it was regular or
irregular. They
should come to the court and not take upon themselves to determine
such a question.”

Then
we have the Malawian 21^st
Century confirmation of this state of affairs in the Attorney
General vs Dr Cassim Chilumpha
MSCA Civil Appeal No 10 of 2006
where the court was of the impression that the State was deliberately
refusing to obey a High Court, order [albeit
because the State was of the view that the order had been erroneously
being made and was sure that could be reversed on appeal].
And the Supreme Court noted that those who come to equity should
come with clean hands and refused to grant the State’s prayer
for
a stay. It is on the same basis that the first defendant’s
application for withdrawal of the court’s order of 15^th
February 2006 is hereby dismissed without discussing the merits or
demerits of the order of 15^th
February 2006. For purposes of clarity, the order of 15^th
February 2006 still lives and will not be dismissed because the first
defendant’s hands were not clean when they made the application.

MADE
in Chambers this 20^th
day of March 2006.

I.C.
Kamanga (Mrs)

J
U D G E