PRINCIPAL
REGISTRY
BETWEEN:
DR CASSIM CHILUMPHA………………………………..PLAINTIFF
and
CHENDAWAKA FAMILY……………….…………..1ST
DEFENDANT
and
BLANTYRE PRINT AND
PUBLISHING COMPANY LTD………….………..2ND
DEFENDANT
CORAM: HON. JUSTICE A.C. CHIPETA
T.C.
Nyirenda, of Counsel for the Defendants
Beni,
Official Interpreter
As Interim
Applications Judge, on 22nd March 2004 on ex-parte application in
this matter came before me under Order 28 rule 1 of the Rules of Supreme
Court. It was duly supported by an
affidavit and a number of exhibits.
Upon considering the application I granted an interim order of
injunction on terms as to understanding in relation to damages on the part of
the Plaintiff in case it should later turn out that the injunction had been
wrongfully obtained. (See: Note 29/1/12
under O29 rule 1 RSC). I also added the
condition that within seven days of that order the Plaintiff should file an
inter-parties application, should he wish to extend the application of the
initial order. (See: Note 29/1/7 under
O29 rule 1 RSC). Today is 26th
March 2004 and the period I allowed for the filing of the Plaintiff’s
inter-partes application is due to expire on Monday 29th March 2004.
It is deliberate that the Rules of
Supreme Court under Order 29 normally sanction an interim order of injunction
granted on an ex-parte application to last only a few days. The aim is to ensure that what the Applicant
has presented as an emergency situation on the ex-parte application is quickly
revisited by the Court in the presence of both parties, who utilize that
occasion to fully argue their sides of the matter to enable it, this time round
come up with a more balanced and less hurried decision. The result of such an expected and early
counter is that the Court either feels confirmed in the order it earlier made
and so extends it or it discovers that it was either misinformed or misled
during the ex-parte application and so it narrates or otherwise dissolves the
order.
The position of the law, as I understand
it, is that on an inter partes hearing the Applicant gets the opportunity in
the face of his/her adversary to justify the need for injunctory relief he had
so much to hurry for in the first place and to bargain for the continuation of
that relied. He can succeed, but he can
equally fail in this endeavour.
Similarly on this occasion the affected party gets the opportunity to
challenge, if he or she is so inclined, the step the Applicant took in his/her
absence during the ex-parte application.
The affected party thus has ample opportunity to demonstrate the
property or otherwise of the Applicant’s approach to the Court for the
injunctory relief in question and to point out if it was improperly obtained,
asking for its dissolution on that account.
The limited time normally accorded to
the initial ex-parte order is deliberately so fixed so as to minimize the
inconvenience, if any, the affected party might suffer by virtue of the order
he/she was not heard on. In addition
the understanding as to damages the
Court requires of the Applicant is there for purposes that in case the affected
party later demonstrates that he/she has suffered unjustifiably by virtue of
the order and establishes that the order should not even have been made in the
first place, it should be open to a Court of Law to make an order that he/she
be compensated in damages for such inconvenience.
If is also the position of the law that
if a party granted an injunction ex-parte does not fulfil the conditions
attaching to the grant of the order, if he does not take out the directed
inter-partes application within the period set by the Court or if he does not
fulfil some other attached condition, the injunction so granted elapses
automatically on non-fulfilment or on breach of condition. (See: Note 29/1/13 under Order 29 rule 1
RSC).
I must say that in this case the
application that was presented to me ex-parte on 22nd March 2004,
upon hearing in mind the principles that govern the consideration of such
applications, as amply discussed at Note 29/1/2 under O29 rule 1 of the Rules
of Supreme Court, I was amply satisfied that it was proper, pending the hearing
of the Originating Summons filed along, to maintain the status quo by granting
the application for injunction and I so granted the same.
The law, as must have already been seen,
does not, when this happens, leave the Defendant in a helpless situation. As already indicated it asks the Courts to,
as first step, limit the period of restraint arising from its order unless
ratified by an inter partes hearing. It
also at the same time asks the Court to guarantee that the affected party will
be compensated in damages on strength of an understanding to this effect by the
Applicant in event of the order being proved erroneous later and being shown to
have done the affected party some harm.
Over and above this, moreover, the law permits the affected party, if he
or she is impatient about waiting for the Applicant’s inter partes application,
to if its own volition or motion challenges the injunction order served on it.
Now in the case at hand the injunction
order herein having been issued on 22nd March 2004 with the
necessary safeguarding conditions in place, the Defendants who were affected by
the order, were assured of all available opportunities to challenge the order,
of they were so minded.
The direction of the Court that the
plaintiff take out an inter partes application within 7 days of the order meant
that within a reasonably short period of time the Defendants would have their
opportunity to comment on the Plaintiff’s application for injunction and do all
in their power to persuade the Court to dissolve it. Their opportunity to expose what they believe to be weaknesses in
the Plaintiff’s application was virtually guaranteed and they were going to be
heard in full. In case, however, the
Plaintiff did not take out the directed inter-partes Summons, the relief of the
Defendants was equally well guaranteed.
As earlier pointed out the order obtained by the Plaintiff was going to
expire by mere virtue of that default.
Of course as already pointed out the
Defendants were free to put in their own application by way of challenge of the
order served on them. As it turns out
this is the option they have settled for and so yesterday afternoon, 25th
March 2004, they brought to Court an ex-parte application of their own to
dissolve the injunction order herein.
I looked at the application and upon
going through it formed the opinion that it should be heard inter partes. I therefore so ordered and recorded my
direction on the file. Learned Counsel
for the Defendants was not satisfied upon learning of my order and so he immediately
came into my Chambers and asked that he be still heard in case I might wish to
revisit my stand. I then duly heard him
on his complaint.
The first point I would like to make
about all this is that the direction I made to have the application for
discharge of order of injunction filed by the Defendants heard inter parties
did not in any way mean that it had been rejected or otherwise found
wanting. In fact each time an ex-parte
application is passed on to a Judge, be it for grant of injunction or for its
discharge, the first thing he does is to evaluate it. At least that is what I do.
If on the face of it he finds it proper to determine it ex-parte he does
so, and he can decide it on the papers or call upon Counsel to present it. If however on this preliminary consideration
he feels that for some reason an inter partes application is more suitable, he
so orders. This Plaintiff’s application
for injunction herein on 22nd March 2002, I can disclose, underwent
the same evaluation. It is just that I
after the evaluation decided to determine it ex-parte and to put in the normal
conditions as safeguards. Therefore it
is not accidental that I heard that application ex-parte just as it is also not
accidental that on the current application I directed an inter partes hearing. In order to have the issue of the injunction
fully and effectively addressed and resolved I decided that the application for
discharge, just like the application for continuation, be subjected to an inter
partes hearing which would accommodate full representations by both parties
with authorities with arguments and counter-arguments well-traded.
The second point I ought to made is that
I so made the it for inter parties hearing, not on a casual glance of the
application papers, but after due perusal of the same. I thus took that decision well knowing that
I was within the rules in deciding on the course the application should take
for effective disposal. This direction
was, therefore, a result of an exercise of a direction the law confers on me. Much as I appreciate that there are points
the Defendants wish to make and that their passion and anxiety to so make those
points is quite high, I also appreciate that matters concerning the law of
business organizations are not as elementary or as commonplace as say bail
applications are and that much as one party may feel so convinced about the
correctness of its position, a more wholesome and encompassing evaluation,
after heavy submissions even citing contradicting authorities from both sides,
may be the best means of achieving justice between the parties. I therefore settled for an inter partes
disposal of the Summons of the Defendants, precisely to allow for full
exploration of the issue from all available angles and to give the parties a
chance even to comment on each other’s arguments and legal points. May I say that the Law of Moses of an eye
for an eye is out of place here and so it does not have to be that an ex-parte
application ought of necessity to be answered by an ex-parte application. The fact that I found the initial ex-parte
application acceptable does not mean that the rest of the disagreements between
the parties should all be settled in the same style.
Having
thus exercised the discretion to direct how the Defendant’s application should
be processed and handled, basically and technically I became functus officio on
this ex-parte appliction. As I must
have already pointed out my order did not deprive the Defendants opportunity to
be heard on their grievances. Chance to
do so was merely being pushed to another day, and they were being given the
opportunity on that occasion to point out the shortfalls of the other party in
his presence and to do so as fully as they desired. If however they felt so strongly against the postponement of
their argument and if they felt that my discretion had not been exercised
judiciously, the door for appeal against this order was readily available.
Be this as it may I had no desire to bar
learned Counsel from conveying his displeasure to me on the order I had
made. He thus went ahead and made his
point. In particular he referred to
Practice Note 29/1/8 under Order 29 rule 1 of the Rules of Supreme Court. This note indicates that the Court has
power, on sufficiently cogent grounds, to discharge ex-parte an order of injunction
granted ex-parte. Believing his clients
to have such grounds, learned Counsel was asking me to use these powers
ex-parte and he went further to pin-point the said cogent grounds in his
address.
As I understand this Practice Note it
does not make it compulsory that on request I handle such applications ex-parte
without option. The announcement of the
existence of such power to me connotes exercise of discretion whether to use
the power or not to use it. If I am not
correct in so construing this power let the Supreme Court correct me for
guidance in future applications. I have
always used this discretion whenever occasion has arisen and as I have said the
opinion I reached was deliberate so that on the points raised there be open and
wide canvassing in the presence of the very party the Defendants are alleging
withheld material information in his ex-parte application for the order under
challenge. I deliberately wanted that
each side exhaust its arguments in the presence of the other party so that the
issue of the injunction herein does not assume the quality of a gorilla warfare
where each party takes the opportunity of the next available ex-parte
application to stab the adversary in the back.
I am quite satisfied that in the manner
the initial application was presented to me, using a uniform method for
handling such applications, I came to the decision to grant it ex-parte with
all safeguards the law allows me to put
in. Now in regard to the
application of the Defendants I equally had reasons that led me into making the
order I made to have if proceed the inter partes way. I still feel that my decision was sound and not capricious. I am not convinced that I should change my
decision just because learned Counsel insists that I should hear this
application ex-parte. My initial order
although ex-parte did take into account the interests of the Defendants. There is room for the Plaintiff’s injunction
to elapse in its own if he does not comply with the conditions of the order. Even if he does comply the Defendants have
already been accommodated in the inter partes application that might follow and
they will have full opportunity to air their grievances against the order. Besides there is an undertaking as to
damages accompanying the order which they can take advantage of if they satisfy
the conditions that would trigger its employment. Above all their present application has not been rejected. They are only being directed to argue it
more openly with the opponent testifying to his alleged misdemeanours. All that point I am certain that the Court
hearing the parties will duly condemn whichever of them is in the wrong. The order I made for this application to be
made inter partes will stand and I so order.
Made in Chambers this 26th
day of March 2004 at Blantyre.