African Minerals and Energy Holdings Limited v Tiyuni Holdings Limited (Commercial Division Case 42 of 2025) [2025] MWHC 27 (21 November 2025)

‘ Man lGi ER Vy Ai fa s ie Fe /; ™, x {Ap tf Lin, . REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI COMMERCIAL DIVISION PRINCIPAL REGISTRY COMMERCIAL CAUSE NO. 42 OF 2025 (Before Honorable Justice Alide) BETWEEN: AFRICAN MINERALS AND ENERGY HOLDINGS LIMITED.................ccecccssceeseeseeeeeees CLAIMANT -AND- TIYUNI HOLDINGS LIMITED.............sccsssssesssssessecessnenssecssnceseccescecsecseceeesecesceecsecs DEFENDANT CORAM: HON. JUSTICE J. ALIDE. Ms. S. Hanjahanja, of Counsel for the Claimant. Mr. Z. Chipembere, of Counsel for the Defendant. Ms. M. Kachimanga, Court Clerk. RULING Alide, J. [1] On 6 May 2025, this Court granted the Claimant a without notice Order for an interlocutory injunction under Order 10 Rule 1 and Rule 27 of the Courts (High Court) (Civil Procedure) Rules 2017 (hereinafter referred to as “CPR 2017”), restraining the Defendant from disposing or encumbering the mineral tenement, held under Mineral Right Number APL 0592, for a piece of land situated at Village Headman Mwabulambo, Traditional Authority Kilupula in Karonga District. The Order was granted pending the final determination of the substantive matter, or any further order of the Court, and was valid for a period of 14 days within which the Claimant was to bring the application with notice. [2] [3] [4] [5] [6] The background to the Claimant’s application is that, on 21st December 2023, the Claimant and the Defendant entered into an agreement in which the Defendant agreed to buy the Claimant’s 100% mining rights held under the Mineral Right Number APL 0592, as stated in the foregoing, at an agreed purchase price of K65,000,000.00 (Sixty Five Million Kwacha). At the time, the Claimant was fully entitled to rights over the mineral tenement. Subsequently, on 7 March 2024, the parties executed an addendum to the agreement under which it was agreed that the Defendant would pay K5,000,000.00 (Five Million Kwacha) within five days of signing the addendum, with the balance payable in instalments. It was Claimant’s submission that although the Defendant made the initial payment of K5,000,000.00 (Five Million Kwacha), and the mineral rights were accordingly transferred, the Defendant defaulted on the balance of K60,000,000.00 (Sixty Million Kwacha). The Claimant further averred that, without its consent, the Defendant had proceeded to put up the tenement for sale and/or rent to third parties, who are presently engaged in the extraction of coal and other minerals. This default in payments, and the subsequent events, is what drove the Claimant to proceed, apply, and obtain the without notice Order for an interlocutory injunction. The matter is now before this Court for a with notice application for the continuation of the Order. In support of the application, the Claimant has filed a sworn statement by Shalom Hanjahanja, counsel for the Claimant and skeleton arguments. She has also filed a sworn statement in response to the Defendant’s sworn statement in opposition to the application. On the other hand, the Defendant opposes the application and has filed a sworn statement by Kamphinda Gowa Nyasulu and skeleton arguments in that regard. The Defendant further filed a notice in which it notified the Court and the Claimant of its intention to cross- examine the Claimant’s Legal Counsel, Ms. Shalom Hanjahanja, as regards her sworn statement in support of the application. It was the Claimant’s application that the order for an interlocutory injunction granted by this Court on 6 May 2025 be continued as there was a serious question to be tried in the matter. The Claimant detailed down a summary of the issues that led to the dispute between the parties culminating in the current application in a bid to demonstrate that there was a serious question to be tried in the matter. On whether damages would be an adequate remedy in the circumstances, the Claimant, in relying on the case of Fellowes & Sons v. Fisher (1976) 1 Q. B 122, stated that the governing principle is that the Court should first consider whether, if the Claimant succeeds at the trial, he would be adequately compensated by damages for any loss caused by the refusal to grant the interlocutory injunction, further where there is doubt as to the adequacy of the respective remedies in damages that the question of balance of convenience arises. 2 [8] [9] [10] [11] [12] The Claimant further contended that where doubt exists as to the adequacy of damages, the issue of the balance of convenience becomes central; and where the balance is even, the Court ought to preserve the status quo. The Claimant argued that if the injunction was to be refused, the Claimant would be deprived of its rights to recover or repossess the mineral rights and would suffer substantial loss of the minerals under the rights on the applicable piece of land. The Claimant argued that the Defendant’s conduct amounted to unlawful interference with the very subject matter of these proceedings and posed a risk of irreparable harm to the Claimant's rights and interests. On whether it is just to order the continuation of the injunction, the Claimant argued that it was imperative for the Court to look at the relative strengths of the party’s case in order to determine whether it was just to continue with the injunction or not. It was the Claimant’s position that the strength of its case outweighs the Defendant’s case, and therefore, the order must be maintained until the final determination of the matter. In opposition to the Claimant’s application, the Defendant submitted that the injunction be vacated because, among other things, the Claimant had failed to satisfy the condition set by the initial order to file and serve the with notice application within 14 days of the initial Order. Relying on ESCOM v. Phiri (Civil Appeal 24 of 2001) (2002) MWSC 3 (11 March 2002) the Defendant submitted that the validity of a conditional order was contingent upon the fulfilment of the condition attached to it. The Defendant argued that the without notice injunction granted to the Claimant was conditional upon the Claimant filing an inter partes application within 14 days. It was argued that since the Claimant had failed to file the application within that period, the injunction had lapsed, leaving nothing before the Court to be continued. The Defendant further submitted that, since the application was filed out of time, the Claimant ought to have sought the Court’s permission for such late filing. The Defendant also submitted that it is trite that an injunction is unsustainable where there has been a suppression of material facts by the Claimant. The Defendant argued that the Claimant had deliberately suppressed the fact that it had instituted a similar action before the High Court, Civil Division, arising from the same set of facts. The Defendant submitted that such suppression of material facts disentitles the Claimant to the equitable remedy of an injunction and called for the dismissal of the application accordingly. The Defendant further argued that damages were an adequate remedy as the dispute relates to the loss of mining rights whose damages are easily quantifiable. The Defendant argued that it was more convenient in the circumstances to allow the Defendant to continue mining on the piece of land in question knowing that damages would be sufficient in the event the Claimant succeeds than to suspend the Defendant’s operations, which 3 [13] [14] [15] [16] were a source of livelihood for a lot of people. The Defendant also observed that in the circumstances, the interest of justice demands that the order be vacated for having lapsed and for suppression of material facts. During cross examination, the Defendant centered the same on the agreement between the Claimant and the Defendant in which the Defendant sought to establish that the agreement executed between the Claimant and the Defendant was not stamped therefore not valid. The Claimant’s Legal Practitioner conceded in cross examination that the agreement and the addendum, upon which the present proceedings are anchored, were not stamped in accordance with the Stamp Duties Act. She, however, clarified that despite the absence of stamping, the Defendant had at all material times treated the agreement as operative and, in fact, continues to mine on the land under its terms. In its response, the Claimant submitted that the with notice summons for continuation of the injunction had been filed on 21 May 2025, one day beyond the conditional 14-day period because of an administrative problem. The Claimant, however, noted that the application was nonetheless properly served and relied on Order 10 Rule 6 of the CPR, which requires that applications for an interlocutory order must be served at least two clear days before the hearing. This requirement, the Claimant argued, was fully complied with. The Claimant further submitted that the one-day delay was not of such seriousness or significance as to warrant the invalidation of the application, and further that the Defendant suffered no prejudice as a result of it. The Claimant urgent the Court to exercise its discretion on the matter and urged it to rely on the three-stage approach laid down in Denton & Others v. TH White Ltd & Another [2014] EWCA Civ 906 thatis to, first, assess the seriousness and significance of the non-compliance; second, consider the reasons for the default; and third, evaluate all the circumstances of the case so as to deal with the matter justly. Applying this test, the Claimant argued that the delay of one day was minor, caused by unavoidable administrative challenges, and did not occasion any injustice to the Defendant. Accordingly, the Claimant maintained that the application was properly before the Court and prayed that it should be determined on its merits. On the allegation of suppression of material facts, the Claimant submitted that no multiplicity of actions exists. It was explained that the matter initially commenced in the High Court, Civil Division, but was subsequently transferred to the Commercial Division pursuant to section 6A of the Courts Act. According to the Claimant, this was a procedural transfer well within the law and was known to both parties. It was therefore argued that the omission to highlight this did not amount to suppression of material facts capable of disentitling the Claimant to relief. In conclusion on this point, the Claimant urged the Court to find the Defendant’s arguments without merit and to dismiss them accordingly. [17] [18] [19] [20] Against this background, the issues that fall for determination by this Court are whether the Claimant has satisfied the requirements for the continuation of the interlocutory injunction; or whether the injunction ought to be discharged on account of the Defendant’s objections. Order 10 rule 27 of the CPR 2017 provides that the Court may grant an interlocutory order for an injunction upon application by a party where it appears to the court that (a) there is a serious question to be tried; (b) damages may not be an adequate remedy; (c) it shall be just to do so. The rule further provides that the Court may make such an order unconditionally or on terms or conditions that it may consider just. It is trite that Order 10 Rule 27 codifies the common law principles to be considered when granting an injunction as laid out in the case of American Cyanamid Co. v. Ethicon Limited [1975] 2 W. L. R 316. | will not belabour going through the same. In Forum for National Development Limited -vs- Richard Msowoya, MP & Anor [2018] MWAHC 1104, the Court stated that: “This Court is aware of the applicable law on interlocutory injunctions as submitted both by the claimant and the 1st defendant. The court will grant an interlocutory injunction where the claimant discloses a good arguable claim to the right he seeks to protect. This court will not try to determine the issues on sworn statements, but it will be enough if the plaintiff shows that there is a serious question to be tried. See Order 10 rule 27 (a) Courts (High Court) (Civil Procedure) Rules, 2017. The result is that the court is required to investigate the merits to a limited extent only. All that needs to be shown is that the claimant's cause of action has substance and reality. Beyond that, it does not matter if the claimant's chance of winning is 90 per cent or 20 per cent. See Mothercare Ltd v Robson Books Ltd [ 1979] FSR 466 per Megarry V-C at p. 474; Alfred Dunhill Ltd v Sunoptic SA [1979] FSR 337 per Megaw LJ at p. 373. If the claimant has shown that he has a good arguable claim and that there is a serious question for trial this Court then next has to consider the question whether damages would be an adequate remedy on the claimant's claim. See Order 10 rule 27 (b) Courts (High Court) (Civil Procedure) Rules, 2017. Where damages at common law would be an adequate remedy and the defendant would be able to pay them, an interlocutory order of injunction should be refused, irrespective of the strength of the claimant's claim. See Mkwamba v Indefund Ltd [1990] 13 MLR 244. Where damages are an inadequate remedy the court will consider whether it is just to grant the injunction. See Order 10 rule 27 (c) Courts (High Court) (Civil Procedure) Rules, 2017. This will involve weighing whether the balance of convenience or justice favours the granting of the interim order of injunction. See Kanyuka v Chiumia Civil Cause Number 58 of 2003 (High Court) 5 [21] [22] [23] [24] (unreported); Tembo v Chakuamba MSCA Civil Appeal Number 30 of 2001 both citing the famous American Cyanamid Co. v Ethicon Ltd [1975] 2 WLR 316.” As discussed in Mobil Oil (MW) PVT Limited vs Petroda (Malawi) Limited and persons unknown Civil Cause Number 3471 of 2000 (High Court) (unreported) the purpose of an injunction is to preserve that status quo of the parties until their rights have been determined in the action. On whether there is a serious question to be tried, the Court is mindful that, at this stage, it is not called upon to conduct a full trial of the merits but only to assess whether the issues raised are substantial and warrant judicial consideration. From the totality of the facts, the Claimant’s case is that the Defendant has no lawful right to the mining tenement, having failed or neglected to fulfil a fundamental condition of the agreement: namely, the payment in full of the purchase price. It is clear that the entire surrender of the place in question and the mining rights was premised on the full consideration that was agreed between the parties. In my view, in the absence of such full consideration, there is breach and the Defendant cannot lawfully own the mining rights. This means that he cannot sell, lease, or otherwise dispose of the tenement to third parties. | have noted the Defendant’s reliance on the issue of non-endorsement or payment of Stamp Duty that was raised during cross-examination. The Defendant is effectively contending that the agreement was ineffectual for want of payment of stamp duty or stamping. However, the Court observes that, notwithstanding this objection, itis clear that the Defendant has itself treated the agreement as operative and continues to mine on the land pursuant to its terms but without payment. Having seen the inadequacies in the agreement, the Defendant should have taken steps and repudiated it because its non- effectiveness affect both parties. However, the Defendant has continued to reap the resources subject of the very same agreement which it wants to fault in this Court without any due regard to the Claimant. Equity does not support this kind of thinking since it is very clear that the Defendant is intentionally taking advantage of the situation and is seemingly exploiting the other party. The Defendant’s hands are dirty in this case. | am therefore Satisfied that there is a serious question to be tried in this matter. On whether damages are an adequate remedy, it is clear that the Claimant would suffer loss in the form of deprivation of its mineral rights and mineral resources on the allocated piece of land if the Defendant were allowed to continue mining, and to grant rights to third parties to do the same. Apart from simply contending that damages will be an adequate remedy, the Defendant did not demonstrate how this would be calculated and compensated to the Claimant. [25] [26] [27] [28] In my view, even if damages were adequate, it may be difficult to ascertain them looking at the conduct of the Defendant and also bearing in mind that the extent of the minerals may not be exactly determined. In that regard, this Court would rather preserve the status quo, given that the Defendant’s conduct amounts to unlawful interference with the very subject matter of these proceedings and poses a risk of irreparable harm to the Claimant’s interests. This Court cannot disregard the fact that the Defendant is clearly acting with impunity in this matter and is seeking reprieve in equity. | would like to note further that even if it was very easy to ascertain the damages to be paid to the Claimant in this regard, it is clear that the Defendant is acting with impunity by exploiting and renting out the mining rights without full payment of the consideration. It will therefore be unjust to allow the Defendant to profit from an agreement it has failed to honour while the Claimant continues to suffer loss. It is settled that equity does not permit a party to profit from its own default. On the Claimant's failure to comply with the Court’s conditional order, having filed the with notice application a day late and that the Claimant ought to have sought leave of the Court to extend time, | will start by considering Order 2 Rule 1 to 3 of the CPR 2017 which provides as follows: “1. The failure to comply with these Rules or direction of the Court shall be an irregularity. 2. Notwithstanding rule 1, an irregularity in a proceeding, or a document, or a step taken, or order made in a proceeding, shall not render a proceeding, document, step taken or order a nullity 3. Where there has been a failure to comply with these Rules or a direction of the Court, the Court may__ (a) set aside all or part of the proceeding; (b) set aside a step taken in the proceeding; (c) declare a document or a step taken to be ineffectual; (d) declare a document or a step taken to be effectual; (e) make an order as to costs; or (f) make any order that the Court may deem fit.” Order 2 Rule 1 and 2 of the CPR 2017 provide that failure to comply with a direction of the Court constitutes an irregularity, but such irregularity does not nullify proceedings. The Courtis directed under Rule 3 to consider the powers given thereunder. In looking at various considerations, the Court may consider whether the non-compliance causes prejudice that cannot be remedied in costs or other measures. This was affirmed in The State and [29] [30] [31] [32] Judicial Service Commission, Ex parte Mrs. F. L. Msusa, Civil Cause No. 407 of 2005, where Chikopa J (as he then was) stated that irregularity should not be allowed to defeat proceedings unless it occasions injustice that cannot be compensated. The Defendant relied on ESCOM v. Phiri, Civil Appeal No. 24 of 2001, to argue that the injunction was contingent on strict compliance with the condition. This Court has considered that authority but also notes that the “oxygen principle” approach which has been codified as the overriding objective of the CPR 2017, i.e., to ensure that matters are dealt with justly and not dismissed for mere technicalities. In this case, the delay was for a single day, and the Defendant has not demonstrated any prejudice occasioned by it due to the delay. The Court is therefore satisfied that the irregularity is one that can be cured under Order 2 of the CPR. In that regard | consider the step taken by the Claimant to file the application a day late as effectual in these proceedings. On the issue of suppression of material facts, an injunction, being an equitable remedy obtained in the first instance without notice, obliges the applicant to make full and frank disclosure of all material facts. The question, however, is what facts constitute material facts? Is it just all facts across the board, or any available facts or not? In my view, material facts are those suppressed facts that are material to the application at hand i.e., if had they been disclosed they might reasonably have led the Court to deny the injunction. From the information before the Court, | have noted the Defendant’s source of confusion in this present matter. Looking at the exhibits before the Court, the Defendant’s copy of the Initial Directions lacks the Registrar’s endorsement, dated 30° October 2024, directing the transfer of the matter to the Commercial Division. This is explained by the fact that the Defendant was served only with a summons issued earlier, on 13° September 2024. The Claimant did not disclose or serve upon the Defendant the Registrar’s subsequent direction, thereby creating the impression that two separate proceedings were on foot in different divisions of the High Court. Having considered the same therefore, | am not persuaded that the omission by the Claimant to expressly disclose that the matter was first in another Court prior to being transferred to the Commercial Division was of such materiality as to have affected the decision to grant the without notice injunction. The transfer under Section 6A of the Courts Act was indeed a procedural step, and both parties were at all times aware that the action in this Court was the operative action, evidenced by the Defendant’s filing of its defence in this Court and not the Civil Division. That said, | must state that had the Claimant in fact maintained two live actions and failed to disclose the same, that could have amounted to breach of the duty of full disclosure of material facts. [33] Having regard to the foregoing, it is my finding that there is no sufficient basis to discontinue the Order for interlocutory injunction granted by this Court on 6 May 2025. Accordingly, the Claimant’s inter partes application for the continuation of the interlocutory order for injunction is granted. The injunction shall remain in force pending the determination of the main action. secessesscses see MY UT sccescsecsessestess esas eases seesesasssasaseas Ny Jabbar Alfde JUDGE