Mobil Oil Malawi Limited v Mutsinze (Civil Cause 1510 of 1992) [1993] MWHCCiv 44 (6 August 1993)

IN TME HIGH COURT OF MJ\LJ\WI PRINCIPAL REGISTRY CIVIL CAUSE NO. 1510 OF 1992 BE TWEEN: MOBIL OIL ( MA LAW I) LIMITED ..................... . ... PLAINTIF F LEONARD MUTS I NZ E ................................... DEFENDA NT - and - COR AM: CHATSIKA, J. Mbendera, of Cou nsel, for the Plaintiff Chagwamnjira, of Counsel, for the Defendant Kaundama, Official Court Interpre ter R U L I N G In tl1is app li c ation, re strai ning int e rim injunction t1i ms elf, his serva nt s or age nt s , hi s wife or any other member of hi s in or upon the pr e mi s e s family or whom soe ver f rom remaining k n o w n a s K S / 3 4 2 , N k o l o k o s a , t 11 e L r i a 1 of the act ion whi c h i s pending herein. the Def e ndant, wh et t1er by t t1 e Plaintiff see ks an l3 1 a n t y r e u n L i 1 a f t e r by that stat ing interim aga inst seeking, in j unction restraining the Defendan t, the Plaintiff ha s the Defendant land and The appli catio n is supported by an affidavit sworn by That affid avit Counsel for the Applicant (the Plaintiff). commenced commences proceedings int er alia, the structure th ereon, possession of a pie c e of more particularly de s cribed as Plot No. KS/342, Nkolok osa in Th e Plaintiff also seeks an ord er for the City of Bl a ntyre . an his servants or agents, h i s wife or any member of his family or whomsoever from r e maining in or upon the said property. It is stated in the affidavit that by a letter dated 30th July the Defendant to the Plaintiff whi ch was 1992, written by and exhibited and attache d intent ion marked to l etter dated resign from th e Plaintiff's employment. th e the 6th Augu st 19 92, written by to 11 M3 11 th e Defendant, whi c h and l etter, s ame resignatio n wa s apparently in r ep ly to a s ugge stio n made in the Defen dant' s 11 e w a s 1 i v i n g , w h i c 11 1 e t t e r house the Plaintiff made it clear that it would not relea se the house to the Plaintiff' s us e . tl1 e Defendant gave notice of his By a the Plaintiff the Plaintiff 1s affidavi t and marked . the ex hibit ed In s ubj ec t matter of r e g a r cl i n g the i s this application , the Defe nd ant, the hou se was t 11 e h o u s e accepted . i n w 11 i c h required 11 M2 11 for to as i s , , "-,1 01y -, ( ,~ Q'~ c,; In another the Defendant, dated 7tl1 September 1992 a nd ex hibited and marked the 11 M4 11 the Defendant was given notice l ette r written by to move out of the Pl a intiff to ( ' , ()I · 'J~ "-Q. OU se by the 15th Oc t ober 1992. .. ),.. i I ,. . ,ty / - 2 - 22nd October the Plaintiff the On attention of living is exhibited a nd marked "MS", which was expected to vacate the house on asking him to vacate the house immediately. the the Defendant was st i ll l etter, reminding him that he the 15th Octob er and the Plaintiff wrote another 1992, when that the hou se , came to it in On in which he stated that he was the 23rd October 1992, the Defendant wrote exhibit looking for a hou se and "M7", that the housing authorities had promised him that one would implic ation be found that found the house alternative accommodation, but not later than three months from the 23rd October 1992 in three months' time. He indicated by he would vacate soon as as he t o l1 i s considered t I 1 e m a t L e r the one h a nd and It wa s contended the Plaintiff was tt1e Defend a nt ciid not iL acknowledged rec e ipt of tl1 e Plaintiff ind ee d, befor e th e Def endant ' s Befo re the request a nd, 1 et t e r , L h e D e F e n (1 i1 n L r e f e r r e d l a w y e r s who, on the 3Otl1 Oc tober 1992, wrote exhibit "M9", a ll eg ing in breach of certain contra c t s that tt1e e ntered into betwe e n tt1e Plaintiff on Defendant on l etter the other. that the Plainti ff's emp loyment of hi s own volition, but that he wa s as ked to do the so on consideration Plaintiff would allocate him a fuel filling station whi ch he would operate. the Defendant had performed his part of the contract by resigning, but that the the Plaintiff had fuel contract, as filling station. the time of his resignation, tt1at he would be given contract work on month-to-month basi s and that the contract work which had been offered was wron gful l y terminated. the specific The performance of those contracts. letter further alleged that at letter ended by demanding it did not allocate the Defendant was It was alleged the Defendant its part of to perform r es ign , failed agreed re s ign if he that told t hat that from The to in a In another letter dated 1st November 1992, writt en by the defendant's lawyers to the Plaintiff, which i s exhib ited and marked "M1O", it was stated that since the Plaintiff had failed the Defendant would not vacate the house, since "h e was relying on the same for his in c ome". the alleg e d contract, its side of to honour fro m anotl1er 1992, l e t t er, exhibit tl1e Defendant' s the Def e ndant gave notice of 4th "M11", dat ed In the lawyer s Nov em ber to l1is Plaintiff, the Plaintiff for Def amation commence proceeding s against and Breach of Tenancy Agreement. t he It wa s alleged letter that on the 2nd November 1992, the Plaintiff sent its the hou se driver in Nkolokosa and that thi s action lowered him in the estimation of right-thinking me mbers of the public generally and that in breach of his tenancy agreement in re spect the action was of the hou se . to go and evict the Defendant intenti on t he to from in - 3 - the Defen dant's Fo ll owing this array of letters from is sued a lawy e r s, t he Plaintiff, on the 15th December 1992 writ aga in st the Defendant and claimed possession of the house in Nk olokosa Township and also claimed mesne pro fits. The wri t was serve d on the Defendant's lawyers on the 16th the Pla intiff Dec emb er 1992. obta ined the 17th the Febru ary 1993, Defen dant , the judgement was set aside and the Defenda nt was These matters were gran ted even t ually an inj unction . the 19th January 1993, in default of a defence. reason of an application made by On j udgement by the present application to file his defence. followed l eave fo r by On an fo r application the claim on the Ru 1 e s of The principles upon which an in Order 29/1/2 injunc tion will be considered are set out the Supreme Court a nd were and 29/ 1 / 3 of succ i nc t ly elucidated in the case of American Cyanamid Co. - v- Ethicon Ltd (1975) AC 396. Before an injunction can be gran ted, it must be established that the applicant has a good c lai m to the right he seeks to protect. The cour t does not decide the affida vit s. A good claim is said to have been estab lished if th e ap pl icant s hows that there is a serious point to be the decid ed. When these principles have been establi s he d, balanc e court of conv enience. the balan ce of con ven ien ce the court will consider whether damages wi l l be a su f f ici en t remedy for the mischief which is complai ned of and even if it considers that damages will be a suff i c ient reme dy , the defe ndant or wrongdoer shall be able to pay such damage s. further consider and decide whether the evidence contained its In deciding the question of discretion e xercises it must the i n on th e Plaintiff to In hi s argument in support of the application wh i c h by i n his and la rge emphasised what he had already stated the affi da vit , Mr Mbendera , for the Plaintiff , stated tha t house on Pl ot No. KS/342 was leased to the Plaintiff by the Malawi Housing Corporation. The rent for the house is paid by The the Malawi Housing Corporat i on. house, wh i ch I understood to be among a number of houses leased by the Plaintiff from the Malawi Housing Corpora tion, the leased was Plain t i ff ' semployees. the Def endant in his capacity as an employee of the Pla intiff when he was the Plaintiff's Depot Manager in Blantyre. This house was allocated specifically the for use of to I t is further to be observed lette r of resi gnatio n, the De f endant hastened- fa ask for permiss ion to contin ue to live in the house and pay reasonable rent after the his r esignation. refu sal , he wrote letters and asked for an e xtension of time while he Such pleas, in nor mal c ircumstances , do not come from a person who has a righ t to li ve l ooked for alternative accommodation. Such permission was refused. Afte r in the house. in his that - - i s It "M 2 ". It deals o nly with his I h ave had t he opportunity of r eadi ng hi s The Defendan t has tr ied to connect the question o r hi s occ upation of t he house with the a lleged breaches of c e r ta in co ntra cts . l e t ter a most un ambigu o u s of re sig nation , ex hibi t r esign a nd doc umen t . the reaso ns that le d him tl1er e were other legal reasons connected with the resignation, s uc h as a to be al located a an offer co nt r act job on a month-to-month basis, th at letter would have bee n the most appropriate place wh er e s uc h matters would have be e n spe l t out. s uc l1 matters are not co nn ected wi t h the occupation of the hou se . They are a l so included in hi s defence to the main action. I f suc h contracts were entered int o on a date subsequent t o t he date of t he try L11 e c cJ s e w i l 1 , n o u o u h t , c o n s i cl e r· L11 em . l etter of resignation, the Co urt whi ch will to that decision . fi 11 ing stat i on I am sure th at in tention e ve nt, to If fuel a nd any In Ll1 e l1 o us e this ho use tenancy of in qu es ti o n L11 <1L s l1 o ul u s hou l d a pply. i s governed by Mr Cl1agw,1rnn_jira, f or Lil<' nor<' ncl ,rnL, •,11IJ111il. L <: cl f a c t s o f L h i s m c1 t L e r w i l I e a s i 1 y t he Ma l aw i Hou s in g Corporation a nd l.l 1r• Pla in tiff ' s IJ( ' go verned by t he Registered Land Act (C ap 58:0 1) of Lil e La ws of Malawi a nd that sect ion 46 of that Ac t f\ c l o s e s t u d y o f L 11 e s h ow tl1i s ca se . Tl1 e that that Act doe s not app l y to th e fa ct s of l ea s e agr ee me n t lease of the Pl a intiff. bet ween Wl1ile it i s governed by the terms of that l ea s e, we ca nn o L invoke t he terms implied in t he Reg i stered Land Act whi ch do the ho u s e wa s not apply to it. As already stated above, tl1e Plain t i f f. t he Malawi Hou s ing Corporation to leased by in The Plaintiff granted a licenc e to the Defendant to liv e t h e far the house only P 1 a i n t i f f ' s t 11 e U p o n It wa s not o nl y emp lo yment, by c a ncelled ca ncelled by se ver a l t he t o Defendant . j u s tif y the continued occupat ion of the house by the Defe ndant. the Plaintif f l ega l right that would the Defe nd ant wa s f r o m inference, but was expressly l etters which were written by e m p 1 o y e e . t he I can no t see any licence wa s r e s i g n a t i o n ca n ce ll ed. t he h i s as so in in the def e nd a nt , as in whi c h the busi ness was carried on. In Collison -v- Warren {1901) Ch. D 812 , t he plain t i f f, who was a hotel pro prietor, executed a deed of arrang e me nt In for the benefit of hi s creditors. t he deed he a ss i g nee! the cred i tors, all hi s trustee for to the property l ease ho ld the said hot e l business except ho use The de e d a l s o pro vi ded for t l1e emp loym e nt of the plaintiff as man age r of that during hi s engagement a s manag e r, he the hotel and t oge th er sha ll be allowed to reside and board t he wit h his wife and plaintiff was as the dismissal was co nfirm e d a n d ma nager of the hotel and Th e tru stee asked approved by the com mitte e of inspection. the p l ai ntiff to vacate the rooms whi c h he occupi e d t h e hotel. summar ily dismissed fr om his po s iti o n t he course of t he hotel family. tim e, in In in The plaintiff a n d co ntended, inter alia, that he was entitled to resi de in t he hotel togethe r with hi s wif e and family . refu sed va cate room s the to - 5 - I t was held in that case by Rigby, LJ, on a pp eal a nd c on fir ming the decision of Buckley, J: f or t o be tru s tee i s plain is not c laimin g the plaintiff's dismissal, is no foundation for the plaintif f's c l aim there that he "I t the e ither as owner of the hotel or a s t h i nk pers on who has charge upon it. That bein g so , I t here to r eta in po s s es sion of th e rooms. He has be e n sum marily dis mi ss~d from his pos ition of man a ger by th e trustee wi t h the a pproval of the committee of in s pe ction. We to consider the preci s e gr o und s al l eged ha ve not now bee n for s ummar i l y dismissed. The trustee ha s paid hi m a su m of money as covering all possible damage s to wh ic h he ma y be e nt itled. We have not now t o c o n s i der whether t hat i s t he ri g ht am o unt o r no t . Upo n t he p l a i ntiff's d i s mi ssa l hi s a s manager in my opinion, to occ upy t he cr editor's te rmina t e d an d , .... Under t he business d e e d , the t ru s tee i s entitled to manage as he thinks fit, no t a s the plaintiff thin ks fi t. In my opinion, Buckley, J, wa s quite right in g ranting th e injun c tion and the appeal ought to be di smi ssed.'' r i g ht d urin g hi s e ng a ge me nt th e hot e l wa s , term s of rooms but t he ha s he in in my opinion, on all fours wi th is, The Defendant was given a li c en ce the The abo ve ca s e t o occupy pre sen t cas e . the the house on Pl o t No. KS/342 during hi s enga gemen t as Plain t i ff' s De po t Ma nager at Blantyre Depot. resigned his po s t and th a t resignation terminated hi s en g a gem e nt. The ter min at ion of hi s employment automati c ally t ermin a ted his rig ht i s quit e clear tha t he in the house as the ow ner of the hous e. His claim ha s no legal basi s whatso e ver. t o occupy the Plaintiff's house. is not claiming to be He I t in American Cyanamid's case, The Plaintiff has satisfie d me therefore, satisfied that the principl e s which I am, su pra , have were en unciated that it be en es tabli s he d. has a g ood claim to the right it s eeks to prote ct an d that a am further se r iou s point e x ists which must be decided. to sa ti sfi ed I the Pl a intiff, as the same will not be e a s y a ls o re serve grave doubts as to whether the De f e nd a nt would be the damage s that may be as se sse d by th e Court. that damages would not be an adequate re medy t o q uant ify. t o afford to pay in a po s i t ion I injun c tion I grant an Accordingly, the Defendant, whe t her by him s elf, his s e rvant s or ag e nts, his wife or any ot her member of his fma i 1 y or whomso ever from in o r upon the premi s e s known a s Pl ot No . KS/342 r e maini ng in the City of Blantyr e until after in Nko lo ko s a Town s hip th e tri al of th i s cause of action. I further dir ect that this or der be e nforced with effect froml6th Au g us t 1993 from 8. 00 o 'clock in the forenoon. t o restr ain - 6 - MADE Bl antyre. in Cha mbers this 6th day of Augu st 19 93 , at LA Chatsika JUDGE