Registered Trustees of Zomba Gymkhana Club v Zomba City Council and Another (Civil Cause 36 of 2019) [2021] MWHC 395 (25 May 2021)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI ZOMBA DISTRICT REGISRTY CIVIL CAUSE NUMBER 36 OF 2019 THE REGISTERED TRUSTEES OF ZOMBA GYMKHANA CLUB ......ceeeeeeeneeeees CLAIMANT AND ZOMBA CITY COUNCIL .........- See sneqaccesreaensens Josie odio 0e SAWRGNREHES + vo 058 15° DEFENDANT DR. CLEMENT CHILIMA ......... sneteenceseeroscncccccscsconceacnronnass neseeaenunsenes ces 28? DEFENDANT CORAM: THE HONOURABLE JUSTICE TS MASOAMPHAMBE Mr G. Kaliwo of counsel for the Claimant Mr Mhone of Counsel for the 1* Respondent Ms Malimbasa, of Counsel for the 2™ Respondent RULING Introduction Before me is an application by the Claimant for a continuation of the interim injunction order preventing the 1° defendant from holding itself out as being the owner of Plot No. 519 in the City of Zomba and restraining the 1 defendant from, in any way, offering the said Plot No. 519 for sale to any person or in any way entering upon or dealing with the said Plot No. 519 until trial of this action or until a further order of the court. The Claimant further seeks for the continuation of the interlocutory injunction restraining the 2"4 defendant entering upon the said Plot No. 591, carrying out land clearing activities on the plot and engaging in any other activities whatsoever on the said plot that would amount to trespass or interference of the Claimant's right to the use and enjoyment of its property until trial of this action or until a further order of the court. Factual Background The Claimant is a members’ club incorporated under the Trustees Incorporation Act for the social interaction and sporting activities of its members. The i* defendant is an administrative council for the City of Zomba. Though the 2™ Defendant has been sued in his own name as Dr. Clement Chilima it seems that he is the Director of CGF Enterprises Limited, a business entity registered in the Republic of Malawi. In the initial application for order of mandatory and prohibitory injunction by the 2° Defendant in Civil Cause No. 33 of 2019, the applicant was CGF Enterprise Limited in its own right as a business entity. It is in this matter Civil Cause No. 36 of 2019 the Claimant’s writ of summons and application for an order of interlocutory injunction Dr. Clement Chilima was sued as the 2"! Defendant. To my surprise counsel for 2™4 Defendant in his sworn statement in support of an application to vacate an order for interlocutory injunction by the Claimant described Dr Clement Chilima as a business entity styled ‘CGF Enterprises Limited’ duly registered in the Republic of Malawi. However, what comes out clearly from the facts of the case is that Dr Clement Chilima is a Director of the said CGF Enterprises Limited. Initially, the CGF Enterprise Limited filed an inter parte application for an order of interlocutory injunction in this this Court on 6" June, 2019. The said application was listed as Civil Cause No. 33 of 2019. The prayer was for to restrain the Claimant from trespassing on Plot No. 519 and interfering with transfer of title of said plot from Zomba City Council to the 2" Defendant. I have my own reservations with the said inter parte application by the 2" Defendant. 1 am of the considered view that it was marred with irregularities. We shall revert to this issue later in the ruling. Be that as it may, on 18" June, 2019, the Claimant commenced an action by a writ of sammons against the 1* and 2™ Defendants listed as Civil Cause No. 36 of 2019. Meanwhile, the Claimant filed an ex-parte application for an order of interlocutory injunction seeking reliefs as detailed above. On 12" July, 2019 the Court granted the ex-parte application and directed that the Claimant files inter partes summons for interlocutory injunction within 7 days from the date of the order. On 13% August, 2019 the 2" Defendant filed an ex-parte application for an order to vacate the interlocutory injunction. On 24" August, 2019 the court refused the application and ordered that the application to vacate injunction be heard together on the 19th November, 2019, with the infer partes application for continuation of injunction filed by the Claimant on 17" July, 2019. On the said date of hearing, the parties’ counsel duly brought to the attention of the Court that the 2™ Defendant was coming for the application to vacate the injunction. However, it transpired that the parties present were for Civil Cause No. 33 of 2019, namely; CGF Enterprises Limited and Zomba Gymkhana Club. Zomba City Council was not served with the notice of the inter-partes hearing and therefore the 1* defendant was not present for the hearing. The Court agreed with the parties that the both matters (Civil Cause No. 33 of 2019 and Civil Cause No. 36 of 2019) were interconnected and that it was important that the two matters be heard together. Further, the Court ordered that the 1‘ defendant being at the centre of the both proceedings and in the interest of justice Zomba City Council be served and heard in both applications, The Court also ordered that Zomba City Council be added as a party in Civil Cause No. 33 of 2019. The application before me is particularly in respect of Civil Cause No. 36 of 2016 and the court is invited to decide whether the temporary injunction granted on 18" June, 2019 should be maintained until a further order of this Court or final determination of the substantive matter. Parties Perspective Positions The Claimant’s case The Claimant filed a sworn statement in support of the application for an order of interlocutory injunction. The sworn statement was sworn by Colonel Humphrey Mkandawire (Rtd), who told the Court that he is the Chairman of the Claimant. Colonel Mkandawire (Rtd) proceeded to tell the Court that the Claimant is responsible for the operation of Zomba Gymkhana Golf Club. In order to effectively manage the operations of the said club, the Claimant acquired a portion of land to be used as the golf course. Colonel Mkandawire further told the Court that there were plans to construct toilets and other facilities for gold caddies. It was in the executive meeting that Plot No. 519, a piece of land which formed part of the golf course next to the swimming pool, was identified to be ideal for the construction of the said facilities. However, in April, 2019, the Claimant was surprised to note that the same piece of land was being advertised for sale in the local newspapers by the 1** Defendant. The deadline for submission of offers was the 5"" of May, 2019. The Claimant then wrote to the Chief Executive Officer of the 1° defendant informing them that plot in question belonged to them and requesting the sale process to be halted to allow for amicable discussions between the parties. The 1** Defendant responded in a letter dated 24 May, 2019 stating that according to the adjudication file, the Claimant had failed to lay claim to the piece of land and as a result it became public land to be administered under government office. The 1* Defendant proceeded to claim that plot 519 was subsequently divided to create Plot No. 520 and a leasehold over only Plot No. 520 was registered in the name of the Claimant. On 28" May, 2019 a meeting was held between the parties and the 1* defendant claimed that it owned Plot No. 519 and that it was at liberty to sell the plot, which it claimed it indeed sold to the 2"! Defendant. The 1* Defendant argued that the claimant was merely a user of the facilities on Plot No. 519 and not the owner. The Claimant held its position that it was in fact the true owner of the plot and requested time to collect additional information to consolidate their claim in the title. The 2"* Defendant had then since entered and began clearing the land. The Claimant then proceeded to the Land Registry in Blantyre in order to peruse the file containing the record of the plot in question and obtain a copy of the lease naming the Claimant as the owner of Plot No. 519. Sadly, he was told that the relevant file had gone missing. Nevertheless, the 1* Defendant itself has 3 periodically issued invoices to the claimant pertaining to city rates for both Plots No. 519 and 520 dating as far back as 5" July, 1999 and the most recent invoices in the Claimant’s possession was issued as recently as the 1* July, 2017. The Claimant claims that this demonstrates that the 1* Defendant has always and recognized and recognizes the claimant as the true owner of both Plots (Plot No. 519 and Plot No. 520). Colonel Mkandawire further told the Court that the 2% Defendant had approximately 5 years before approached the Claimant’s previous committee requesting if he could habilitate the swimming pool area (located on plot No. 519) for a period of 7 years after which the land would be returned to the Claimant afterwards. The Claimant denied the request for its own reasons and the Claimant has reasons to doubt whether purported sale by the 1 Defendant of Plot No. 519 to the 2 defendant is an innocent coincidence. Colonel Mkandawire further informed the Court that the period which the transaction took place also raises serious questions as to whether the 1* Defendant was authorised to take the actions which it did. The Claimants allege the decision to advertise and then subsequently sell the land to the 2" Defendant all took place during the time in which the 1* Defendant did not have a duly constituted council because it had been officially dissolved on 20° March, 2019. The 1* Defendant’s case The 1“ Defendant opposes the continuation of the interlocutory injunction arguing it must be vacated because it was obtained in bad faith and with malicious intention. The 1* Defendant filed a sworn statement in opposition to the application sworn by Mr. Philemon Maseko who told the Court that he is the Chief Town Planning and Estates Management Officer of the 1* defendant. Mr. Maseko told the Court that Plot No. 519 is public land and exhibited a copy of certificate of official search marked PM1. He further told the Court that Plot No. 519 has always been vacant land and during adjudication process in 1995 the said plot was presented as vacant land and exhibited a copy of adjudication records marked as PM2. He proceeded to inform the Court that Plot No. 519 only shares a boundary with Plot No. 520 which belongs to the Claimant. The Claimant during adjudication process in 1995 tendered interest to claim Plot No.519. however they were not successful. Mr. Maseko further told the Court that the 1** Defendant applied to Department of Lands for the unclaimed land Plot No.519. The 1** Defendant had erroneously sent city rates bill to the Claimant for Plot No.519 as a result of errors in Data Evaluation Process. He then told the Court that the error is currently being filtered as an attempt to rectify such mishaps. The Claimant cannot infer ownership of the land from the error by the 1° Defendant. The 1* Defendant advertised Plot No. 519 for sale in local newspapers inviting submissions of offer and the 2"! Defendant herein emerged successful. In the premise the Claimant does not have title or proprietary interest in Plot No. 519. The Claimant misrepresented facts to the Court when it applied for ex-parte injunction. Therefore, this is a proper case for the Court to vacate and discharge the injunction that was granted to the Claimant. The 2™ Defendant’s case The 2"? Defendant opposes the continuation of the interlocutory injunction arguing it must be vacated on the grounds of irregularity, abuse of court process and non-compliance with the Court order. The 1* Defendant filed a sworn statement in opposition to the application sworn by Gift Malopa of Counsel for the 2™ Defendant. Counsel Mhone told the Court that an advert appeared in The Daily Times of 24" April, 2019, Zomba City Council offered for sale a plot situated at a junction bounding with Zomba Golf Club and opposite Zomba Gymkhana Club. The 2™ Defendant through its directors Dr. Clement Chilima and Mrs. G. N. M. Chilima expressed interest to purchase the said plot by placing their bid and the same was successful. The 2™ Defendant accepted the said offer on 17" May, 2019 agreeing to all terms of the said offer and in compliance with the terms of the offer, the 2"¢ Defendant through its directors, made payment of MK12,000,000.00 on 17 May, 2019. By accepting the offer and making the requisite payment in compliance with the terms of the offer, the 2"? Defendant was of the firm belief that he acquired rights to the use of the land as he deemed fit pending complete transfer of title from the 1 Defendant. Counsel Mhone then told the Court that to the 2" Defendant’s surprise, the chairman of the Claimant Colonel Humphrey Mkandawire (Rtd) and his team have been claiming ownership of dilapidated structures situated on Plot No. 519 despite the 1 Defendant clarifying to them the true status of the land, that upon adjudication of the said plot the Council designated the place as ‘not claimed’ meaning that the said plot was and has been, until the purchase, public land and Council has always had the right of possession. The 1*t Defendant advised the Claimant and its agents to stay away from the said plot as doing so would be trespassing onto private land as transfer of ownership process had already been initiated. However, the Claimant’s agents including hired policemen have continued trespassing on the said plot and threatening the 2" Defendant’s workers from doing any work on the land. In view of the foregoing the 2" Defendant filed an inter parte application on 6" June, 2019 in the High Court, Zomba District Registry which was listed as Civil Cause No.33 of 2019 restraining the Claimant from trespassing on Plot No. 519 and interfering with transfer of title of the said plot from Zomba City Council to the 2"! Defendant. The said application was served on the Claimant on 19" June, 2019. Counsel Mhone further told the Court that to his client’s surprise the Claimant obtained an ex-parie order of injunction from this Court on 12" July, 2019, the application of which was listed as Civil Cause No. 36 of 2019 and was filed on 18" June, 2019 a day before the 2™ Defendant served the Claimant with their application for an injunction in respect of the said plot. From the time that the claimant filed the said ex- parte application to the time the order was granted, they had about 23 days of knowledge that there was indeed another application filed in respect of the said plot. Nonetheless, they proceeded with the application without disclosing the fact of the existence of another application made by the 2" Defendant or withdrawing their application and instead file a reply to the inter parte application with which they were duly served. Further, the Claimant was granted the ex-parte order on condition that they should within 7 days from the date of the order, file inter parte application. However, upon perusing the court record on 31* July, 2019. the 2™ Defendant’s counsel established that there was no inter parte application on record filed in compliance with the Court’s direction as contained in the order of 12 July, 2019. The 2" Defendant’s counsel consequently claimed that as a result of the Claimant’s neglect and non- compliance of the said court order, the 2" Defendant was denied an opportunity to be heard on the said order. Thus, by obtaining an order of injunction without disclosing the fact that there was already an inter parte application filed by the 2"? Defendant before them and by upon being granted the said order, not filing and serving on the 2™ Defendant an inter parte application as ordered by the Court, the Claimant abused court process, irregularly obtained the said order by suppression of material facts and is in breach of court order. The Law and Analysis The present application by the Claimant was brought under Order 10 rule 1 as read with rule 27 of the Courts (High Court) (Civil Procedure) Rules which provides as follows: “1, A party may apply during a proceeding for an interlocutory order or direction of the Court by filing an application in a proceeding in Form 4. 27, The Court may, on application, grant an injunction by an interlocutory order where it appears to the Court that- (a) there is a serious question to be tried: (b) damages may not be an adequate remedy; and (c) it shall be just to do so, and the order may be made unconditionally or on such terms or conditions as the Court considers just.” This Court is well aware of the applicable law on interim interlocutory injunctions as submitted by both the Claimant and the Defendants. The court will grant an interim injunction where the applicant discloses a good arguable claim to the right he seeks to protect. The court will not try to determine the issues on sworn statement evidence but it will be enough if the Claimant shows that there is a serious question to be tried. The main issue for determination is whether this Court should grant an order for the continuation of the interlocutory injunction, as was argued by the Claimant, or discharge the interlocutory injunction, as was argued by the 1* and 2™ Defendants. D The first issue to resolve is the 2“ Defendant’s argument opposing the continuation of the interlocutory injunction on the ground that it was irregularly obtained; there was an abuse of court process and suppression of material facts. Counsel for the 2"' Defendant argued that there was already another application made by the 2 Defendant. The Claimant, therefore, should have either informed the court or withdrawn their application. Counsel relying on the case of State v Malawi Communications Regulatory Authority, Ex Parte Celtel Ltd and another, [2010] MLR 418 (HC) argued and submitted that the Court has power to discharge or dissolve an injunction if it appears that the order was irregularly obtained by suppression of material facts. This Court has looked at the said inter parte application filed on 6" June, 2019. As earlier indicated, | form the opinion that the said inter parte application was fraught with irregularities. This Court finds that until the Claimant was served with the inter parte application there was no substantive proceeding on which inter parte injunction lied on. I have on several occasions gone through the file and the court record; I have not seen any originating process filed in the High Court for the said Civil Cause No. 33 of 2019. All I have seen is the inter parte application for the interlocutory injunction. Further, in the sworn statement to vacate the interlocutory injunction, counsel for the 2"! Defendant does not mention on whether any originating process was filed, all he informed the Court was that there was an inter parte application listed as Civil Cause No. 33 of 2019. The law on interlocutory injunction is provided under Order 10 of the Courts (High Court) (Civil Procedure) Rules. The relevant part of the Order states: “1. A party may apply during a proceeding for an interlocutory order or direction of the Court by filing an application in a proceeding in Form 4. (1) — Anapplication in a proceeding shail— (a} be signed by the applicant or the applicant’s legal practitioner; (b) cite the same parties as in the proceeding and anyone whose interests are affected by the order sought; and (c) be signed and sealed by the Registrar. (2) Nothing in this rule shall prevent a party to a proceeding making an oral application during the proceeding or the Court making an order on an oral application. 3. A party may apply for an interlocutory order at any stage, namely, before a proceeding has started, during a proceeding, or after a proceeding has been dealt with, and whether or not the party mentioned the particular relief being sought in his summons or counterclaim.” 8. — (1)A person may apply for an interlocutory order before a proceeding has started by filing an application in a proceeding and the application shall— (a) set out the substance of the claim; (b) have a brief statement of the evidence on which the applicant will rely; (c) set out the reasons why it is appropriate that the order be made before a proceeding has started; and (d) have with it a sworn statement in support of the application. (2) The Court may make the order if it is satisfied that— (a) the applicant has a serious question to be tried and, if the evidence brought by the applicant remains as it is, the applicant is likely to succeed; and (b) the balance of convenience favours the making of the order. (3) When making the order, the Court may also order that the applicant file an application by the time stated in the order. Rule 8 confirms that an interlocutory injunction order is only granted before a proceeding has commenced when the matter is one of extreme urgency. More importantly, there must be a suit in place before one can be granted the order because this enables the court to determine whether or not there is a serious question to be tried. Suspicion that there may be a cause of action is not enough. In this case, although the and Defendant filed a certificate of extreme urgency, there was nothing in the sworn statement which justified that the matter was one of extreme urgency. Be that as it may this was an infer parte application. By the time the Claimant was served on 19" June, 2019, the 2"’ Defendant had enough time to have filed an originating process under Order 5 Rule 1 of the Courts (High Court) (Civil Procedure) Rules. In Vitus Gomamtunda Dzoole Mwale v Malawi Congress Party, Civil Cause No. 1029 of 2018 (unreported) Justice Kenyatta Nyirenda held inter alia as follows: “As already observed herein, the present application was filed with the Court on 10 December 2018. At this point in time, neither summons nor any other founding document to initiate proceedings had been_filed with the Court, Actually, the Claimant has yet to commence the main proceedings. More than 4] days have elapsed since the application was lodged with the Court. There being no main proceedings, an application for an interlocutory injunction brought under Order 10, rule 27, of CPR is untenable. It might be that the Claimant meant to premise the application on Order 10, rule 8, of CPR but inadvertently mentioned Order 10, rule 27, of CPR. Unfortunately, the application does not also meet the requirements of Order 10, rule 8, of CPR which among other matters. enjoins an applicant to set out the reasons why it is appropriate that an order of interlocutory injunction be made before the main action has started. 1 have read many times over the Claimant’s sworn statement to find out why the application was being brought before commencement of the main action but my search has been in vain.” (Emphasis supplied) This Court, therefore, finds that there was no infer parte application known to the law to stop the Claimant from commencing its own proceedings against the 1* and 2" Defendants. Therefore, there was no abuse of court process and the ex-parte order for the interlocutory injunction was not obtained by suppression of material facts. An interlocutory injunction is a temporary and exceptional remedy which is availabie before the rights of the parties have been finally determined: See Order 10 rule 27 of the Courts (High Court) (Civil Procedure) Rules, American Cyanamid Co. v. Ethicon Limited [1975] A. C. 396. In the case of Ian Kanyuka v Thom Chumia &Others, PR Civil Cause No. 58 of 2003, Tembo J, as he then was, observed as follows: “The usual purpose of an interlocutory injunction is to preserve the status quo until the rights of the parties have been determined in the action. The injunction will almost always be negative in form, thus to restrain the defendant from doing some act. The principles to be applied in applications for injunction have been authoritatively explained by Lord Diplock in American Cyanamid Co. v. Ethicon Limited [1975] A. C. 396.” Indeed, the law governing the grant or refusal of injunctions was propounded by Lord Diplock in the case of the American Cynamid Company v Ethicon Limited supra. This has been approved by the Supreme Court of Appeal in Malawi Mobile Limited v Malawi Communications Regulatory Authority [2006] MLR 280. The three threefold test for grant or refusal of an injunction is as follows: (a) Is there a serious question to be tried? If the answer is in the affirmative, then a further question arises; (b) Would damages be an adequate remedy for a party injured by the Court's grant of or failure to grant an injunction? (c) Where does the balance of convenience lie? The Claimant’s counsel submitted that in the present matter, their right to possession, use and enjoyment of the property in question is under threat of serious violation as a result of the conduct of the Defendants. The Claimant intends to tender sufficient evidence during trial to show that it is in fact the true owner of the land. On the other hand, the 1* Defendant submitted that an interlocutory injunction is granted where the applicant discloses a good arguable claim to the right he seeks to protect. See Mulipa v Mr and Mrs Buliyani and others, Land Cause No. 105 of 2015 (unreported). The Claimant have not been able to show that they have a triable issue nor a right to protect. This is because there is no evidence that they are the owners of the plot in question. They have not been able to produce any proof of ownership in relation to the land. The Court will grant an interim injunction where the applicant discloses a good arguable claim to the right he seeks to protect. The court will not try to determine the issues on sworn statement evidence but it will be enough if the Claimant shows that there is a serious question to be tried. This Court has considered this matter and it is clear from reading the sworn statements that the facts herein are very much in dispute and taise pertinent questions to be determined by the Court at a full trial. The fact that the claimant has been paying city rates for the land in question raises serious question to be answered at trial. In Mwapasa and Another v. Stanbic Bank Limited and Another, HC/PR Misc. Civ. Cause No. 110 of 2003 (unreported), the Court rightly stated “a court must at this stage avoid resolving complex legal questions appreciated through factual and legal issues only trial can avoid and unravel”. It is enough, accordingly, that the Claimant has shown that there are serious questions to be tried: see Matenda v Commercial Bank of Malawi [1995] 2 MLR 560. The next issue to consider is whether damages would be an adequate remedy for a party by the court’s grant or failure to grant an injunction. Claimant’s counsel submitted that this is a matter in which damages would not be an adequate remedy considering that the damage to the land would have been occasioned and the Claimant would be exposed to arbitrary deprivation of the use of the land that has always been in its possession and control. To the contrary counsel for the 1* Defendant submitted that the Defendants would suffer huge damage if the injunction were to be granted. The Court should note that the 1“ Defendant has been the owner of the public land which remained during the adjudication process of 1995. The injunction would make the Defendants suffer damage because the sale of the land clearly adds to the public offers and public stands to benefit with the sale as the place would be renovated and play a crucial role in the economic value of the city at large. Granting the injunction means the 1 Defendant would not be able to sell the land which could add value to the city’s outlook not to mention the fact that the 2"! Defendant has already started expending on the land. It must be stated and reiterated that this is an interim relief, if the Court it is to grant the relief it will do so temporarily. Thus, the argument the injunction would stop the renovation or the sale is untenable. At this point, the Court is not determining who owns the land. If after trial the Claimant fails to establish its claim the Defendants would still proceed with the sale and the renovation and public would still benefit. On the other hand, the Claimant might also raise the same argument that they wish to renovate the place which as well might play a crucial role in the economic value of the city. More importantly, if the Court at trial were to find in favour of the Claimant and the place has already been changed by the 2™ Defendant would damages be an adequate remedy? The answer is in the negative. In any event, land is unique and damages have been held to be inadequate by numerous authorities, so damages cannot be adequate. See Ngwalamba v China Gansu Limited and Another (Land Cause No. 10 of 2016) [2016] MWHC 631 (11 February 2016). In Malawi Savings Bank v. Sabreta Enterprises Limited, MSCA Civil Appeal No. 44 of 2015 (unreported) the Supreme Court observed as follows: 10 “On the matter of adequacy of damages, we think each case must be considered on its own facts. There is nothing like one principle fits all scenarios. We think it a little simplistic not to grant an injunction against an appellant just because it has deeper pockets. Just because it can afford to pay damages in case the injunction was erroneously granted. There will he instances, and we have a feeling this could he one of them, where damages will never suffice the fact that they can he afforded notwithstanding. This case does not, in our judgment, seem to be about damages.” The last factor this Court must consider where does the balance of convenience lie. The Defendants argue that they are the real owners of plot No. 519 as evidenced by the application of the lease. The Claimant has no actual projects on the land which would be affected if injunction is not granted. The balance of convenience in this matter leans towards refusing a grant of the interlocutory injunction to preserve the status quo of the parties just as it was stipulated in Laston Kamunga v Alafuledi Bakuwo and Jacob Kantambo, Civil Case No. 199 of 2018 (unreported). Most injunction cases are determined on the balance of convenience. In American Cyanamid Co. v Ethicon Ltd supra, Lord Diplock said, at p. 408: «it would be unwise to attempt even to list all the various matters which may need to be taken into consideration in deciding where the balance lies, let alone to suggest the relative weight to be attached to them. These will vary from case to case.” In other cases, such as Cayne v Global Natural Resources ple [1984] |! All ER 225, the courts have insisted that it is not mere convenience that needs to be weighed, but the risk of doing an injustice to one side or the other. Lord Diplock, in American Cyanamid Co. v Ethicon Ltd, supra said the extent to which the disadvantages to each party would be incapable of being compensated in damages is always a significant factor in assessing where the balance of convenience lies. It must be said that in order to preserve the status quo until the rights of the parties have been determined in the present matter, it is proper to continue with the order of the interlocutory injunction. Thus, the Claimant to remain in possession of the land. If the injunction is vacated and the 1* Defendant continues to renovate the plot in question and at trial it is found that the owner is the Claimant, not only will the Claimant suffer more injustice than Defendants, the 2" Defendant will have wasted its resources too in renovating the plot in question. The order of injunction was granted because the 2™ Defendant started working on the plot in question. In view of the foregoing and by reason thereof, it is my considered view that the balance of convenience tilts in favour of allowing the continuation of the interlocutory injunction. The interlocutory injunction granted herein should, therefore, remain in force until the main action is determined. The trial of 41 this matter be expedited. The order of injunction herein shal! therefore subsist until determination of this matter by trial or otherwise. Costs will be in the cause. Made in Chambers this Monday the 25" day of May, 2021 at Zomba. fuels S Masog#mphambe JUDGE 12