IN THE HIGH COURT OF MALAWI
LILONGWE DISTRICT REGISTRY
CIVIL CAUSE NO. 652B OF 2005
BETWEEN:
FERGUSON CHIKOSA (ADMINISTRATOR OF THE ESTATE OF FEYANI CHIKOSA(DECEASED) .APPLICANT
-and-
USHERN SAMUEL CHAGOMERANA .RESPONDENT
CORAM: HON. JUSTICE NYIRENDA
Lungu, Counsel for the Plaintiff
Chilenga, Counsel for the Defendant
Kafotokoza, Court Interpreter
RULING
The plaintiff herein obtained an injunction against the defendant on 2nd June 2005 in which the defendant was injuncted, by himself or others on his behalf, from driving, using, taking, keeping, detaining or otherwise interfering with motor vehicle Mack Truck Horse Registration Number BJ 4003. This is to quote from the exact order as it was drawn up. It was further ordered that the vehicle, which then was in the defendants possession, be moved to the court for custody until the determination of the matter. In a way therefore the injunction was a mandatory injunction.
The brief back ground to the matter and only to the extent necessary for the determination of this application, is that the plaintiff sold the truck horse to the defendant. The defendant collected the truck horse before he paid the plaintiff. The sale agreement is dated 29th November, 2004. The truck horse was to be paid for by the end of January, 2005. The undisputed position is that the defendant to date has not paid for the truck. It is also the facts that the defendant gave the plaintiff some cheques for payment. The cheques were referred to drawer. It is against this back ground that the plaintiff sought the injunction and obtained the order referred to above.
The defendant now seek the dissolution of the injunction primarily on the ground that this is a matter where damages would be sufficient compensation.
I intend to be very brief myself in determining this matter at this stage where the task is not determine the matter on merits. The task of the court at this stage is to maintain the status quo where that can be achieved. The grant or refusal of an injunction is on balance of justice( previously said to be on balance of convenience), Depending on where the pendulum swings, justice demands that the court achieves and secured the status quo until the court finally disposes of the matter. See; American Cyanamid Co, v Ethiopian Ltd (1975) All ER 504. See also Gwanda Chakuamba v John Tembo, Civil Cause No. 2509 of 2001 where it was held that the principles on which this court restrains a party from pursuing a course of conduct before the court decides the dispute is based on justice and fairness .. a court should do the most and best to minimize injustice and increase justice in the circumstances.
There are several other considerations that must exercise the courts mind but by and large the above is fundamental. In the instant case it must also exercise the courts mind whether damages could be adequate remedy such that an injunction might not be necessary. The Respondent, is seeking that the injunction be vacated, and mainly relies on the fact that this was a sale agreement; all the plaintiff should be asking for therefore is his money and therefore that damages would be sufficient to redress the plaintiff.
The fact that damages would be sufficient redress should be considered in context and the entire circumstances of the case. It is undisputed in the instant case that the defendant took delivery of the truck without paying a penny. He has had the truck until recently when then plaintiff obtained the injunction. In between the other undisputed fact is that the defendant gave the plaintiff cheques which were referred to drawer. The situation in which we are therefore is that the defendant wants peaceful use and enjoyment of the plaintiffs property at virtually no cost. Further more the defendant should really be ashamed in expecting this court to believe that this is a case where damages would be sufficient remedy when he has already demonstrated inability to pay. In fact to me cheques that are referred to drawer are not an indication of inability to pay. It is to me an indication of deceit and unwillingness to pay. The defendant comes to court with dirty hands. The situation here is that there might be nothing left for the plaintiff if the defendant was allowed to continue using the truck horse and in the event that something was to go wrong with the horse. Motor vehicles are used on our roads at a fairly high risk of accident and damage not to talk about the obvious depreciation in value even in the hands of the most careful operator.
In all the circumstances of this is case it is only proper that the injunction herein should subsist until the determination of the substantive cause. There is already a writ of summons filed. I can only urge the plaintiff to speed up the action.
Costs are for the plaintiff for this application.
MADE in Chambers at Lilongwe this 9th day of December, 2005.
A.K.C. Nyirenda
JUDGE