Ashani and Another v Samba (Civil Cause No. 488 of 2016) [2017] MWHC 25 (17 January 2017);









MARY ASHANI ......................................................... 1ST PLAINTIFF

WALES SAMBA ........................................................ 2ND PLAINTIFF





Mr. Chibwe, of Counsel, for the Plaintiff

Mr. Kusiwa, of Counsel, for the Defendant

Mr. O. Chitatu, Court Clerk



Kenyatta Nyirenda, J

This is an application whereby the Plaintiffs seek an interim order of mandatory injunction [Hereinafter referred to as the "mandatory injunction"].

The case herein commenced with the Plaintiffs issuing a specially endorsed writ of summons dated 12th December 2016 claiming (a) an order for the delivery up of the motor vehicles, (b) damage for conversion, (c) damages for trespass, (d) interest on (b) at the National Bank of Malawi lending rate base on compound interest and the costs of the action. The Statement of Claim reads, and I quote it in full as it sets forth very clearly the case for the Plaintiffs:

"1. The Plaintiffs are and were at all material times entitled to use and possession of motor vehicles (i) Toyota Hilux registration number BLK 3596 registered to Avis Rent a Car and (ii) Toyota Corolla registration number BQ7384 registered to the 2nd Plaintiff (the motor vehicles.

2.      On or about 25 October 2016, the Defendant acting through Mr Chiocha, its managing Director, detained and seized the motor vehicles purportedly for rental arrears owing from Shire Highlands Hotel on premises on plot number LK676 in Namiwawa, Blantyre.

3.      The said seizure was wrongful and irregular.


3.1       The seizure was effected on motor vehicles that do not belong to the tenant, Shire Highlands Hotel

3.2       At the time of the seizure, the Defendant did not have any warrant for distress for rent.

4.       Despite the Defendant being made aware of the status of the said vehicles and despite requests made, to Mr Charles Chiocha, the Managing Director of the Defendant, to deliver up the vehicles, the Defendant has failed or refused to do so.

5.       By reason of the wrongful detention, the seizure of the motor vehicles was unlawful interference with the Plaintiffs' goods and that unlawful interference has caused the plaintiff to suffer loss and damage.

Particulars of loss and damage

5.1       Loss of use of the motor vehicles Toyota Hilux registration number BLK 3596 and Toyota Corolla registration number BQ7384

5.2       Costs of hiring an alternative vehicle and taxi fares from 26 October 2016

6.       The said vehicles were being used by the Plaintiffs in their day to day running of business and as such the Plaintiffs are entitled and in fact claim interest on the hire charges and taxi fares from 25 October 2016 to the date the Defendant delivers up the vehicles on compound basis at the National Bank of Malawi base lending rate. "

Almost contemporaneously with the issuance of the writ of summons, the Plaintiffs filed with the Court an Ex-parte Application for a mandatory injunction compelling the Defendant to deliver to the Plaintiffs motor vehicles Toyota Hilux and Toyota Corolla registration numbers BLK3596 and BQ7384 respectively [Hereinafter referred to as "Toyota Hilux" and "Toyota Corolla" respectively] pending the determination of the main action herein.

Having considered the ex-parte application and the supporting affidavit sworn by Mary Ashani [Hereinafter referred to as the "Plaintiffs' Affidavit"], the Court refused to grant an ex-parte mandatory injunction but instead ordered the matter to come by way of inter-partes hearing on 10th January 2017.

The Defendant is opposed to the application for mandatory injunction and it filed an affidavit in opposition, sworn by Mr. Charles Chiocha, the Respondent's Managing Director. The thrust of the Respondent's case is that the Plaintiffs owe the Respondent the sum of K 18,675.771.78 in rental arrears for the period from 1st April 2015 to 31st December 2016. In the premises, the Defendant claims to be entitled to a lien upon the motor vehicles until the rental arrears are paid.

During the inter-partes hearing, Counsel Chibwe informed the Court that the Defendant had written the Plaintiffs to the effect that the Defendant was ready to unconditionally release the Toyota Corolla. In view of this development, Counsel Chibwe stated that the Plaintiffs would no longer seek a mandatory injunction in respect of the Toyota Corolla but would still pursue the said relief with respect to the Toyota Hilux.

As already mentioned, the Plaintiffs seek an interim mandatory injunction. It is trite that an interim mandatory injunction ought not to be granted except in very exceptional circumstances: Fessenden v. Higgs and Hill Ltd [1935] ALL ER 435 and Redland Bricks v Morris [1969] 2 ALL ER 576. Since an interim mandatory injunction is likely to carry a greater risk of injustice if it turns out to have been wrongly made than an order which merely prohibits, such an injunction has only to be granted in cases which are unusually strong and clear. This is a different and a higher standard than that required for prohibitory injunction: see Harrington v. Polytechnic of North London [1984] 1 W.L.R. 1293, Dennis Kang’ombe v. Malawi Revenue Authority [2006] MLR 102 and DairiBord Malawi Limited v. Phillip Msido, HC/PR Civil Cause No. 214 of 2007 (unreported).

It is legitimate where an interim mandatory injunction is being sought to consider whether the Court does feel a high degree of assurance that the plaintiff will ultimately establish his right at the trial. That is because the greater the assurance that the plaintiff will ultimately establish his right at the trial the less will be the risk of injustice if the injunction is granted: see The State v. Attorney General (Inspector General of Malawi Police Service ex-parte Dr. Bakili Muluzi, Miscellaneous Civil Cause No. 57 of 2005 (unreported).

It is also the case that an interim mandatory injunction can only be granted where the plaintiff shows a very strong probability on the facts that grave damage will accrue to him: see Southern Region Water Board v. John S. Magombo and Jimmy Thangota, HC/PR Civil Cause 3509 of 2005 (unreported).

As it can be seen from this exposition of the law, granting of an interim mandatory injunction is sparingly done. I have read and re-read the Statement of Claim, including the Plaintiffs' Affidavit, and I have great difficulties in understanding how the Plaintiff expects this Court to grant such a rare order as an interim mandatory injunction on the heavily contested affidavit evidence presented in respect of this matter.

Further, I am not satisfied that the Plaintiffs would suffer grave damage if the mandatory injunction being sought were not to be granted. In terms of the Statement of Claim, it is alleged that the Defendant's unlawful interference with the motor vehicles has caused the plaintiff to suffer loss of use of the motor vehicles and costs of hiring an alternative vehicle and taxi fares from 26 October 2016. This is clearly monetary loss which would be easily quantifiable.

Finally, and for the sake of completeness, I wish to observe that the authorities relied on by Counsel Chibwe for his proposition that a person is entitled to an order of injunction to support an action for trespass whether or not there has been actual damage are not relevant to the present case. Firstly, the cited cases of Woollertonn and Wilson Limited v. Richard Costain Limited [1970] 1 WLR 411, Charrington v. Simons & Company Limited [1971] 1 WLR 598 and Patel and other v. Smith (Eziot) Limited [1987] 2 ALL ER 569 dealt with the so called "negative" or "prohibitory" interlocutory injunctions and, secondly, the subject matter of the cases was real property which is subject to different considerations in so far as interlocutory injunctions are concerned: see the recent decision by the Supreme Court of Appeal in Village Head man Kungwa Kapinya and Others v. Chasato Estates Ltd, MSCA Civil Appeal No. 75 of 2016 (unreported) and the cases of Sikawa v. Bamusi, HC/PR Land Civil Cause No. 53 of 2013 (unreported) and Mleva v. Simon, HC/PR Land Civil Cause No. 53 of 2013 (unreported) referred to therein

All in all, it is my considered judgment that the Plaintiff’s Summons cannot be maintained. To this extent, the application by the Plaintiffs for a mandatory injunction is dismissed with costs.

Pronounced in Chambers this 17th day of January 2017 at Blantyre in the Republic of Malawi.


Kenyatta Nyirenda