Saimfur Freight v Trust Auctioneers and Estate Agents (106 of 2005) ((106 of 2005)) [2005] MWHC 52 (30 March 2005);

Share


IN THE HIGH COURT OF MALAWI

LILONGWE DISTRICT REGISTRY

CIVIL CAUSE NO. 106 OF 2005


BETWEEN


SAIMFUR FREIGHT ……………………………………PLAINTIFF


AND


TRUST AUCTIONEERS &

ESTATE AGENTS ………………………………………DEFENDANT



CORAM: HON. JUSTICE CHINANGWA


Mwale, Counsel for the Plaintiff

Nankhuni, Counsel for the Defendant

Gonaulinji, Court Clerk



RULING



The Plaintiff through counsel Mwale applies for a mandatory injunction under O.29 r RSC against the defendant. In essence the mandatory injunction is to compel defendant to deliver to plaintiff K557,750.00 which the defendant is withholding allegedly without lawful cause.


Facts show that on 4th February, 2002 an Attachment Order was made in respect of 15 minibuses in the case of Amina Bai Ismail V Syed Muhammed Amin, Lilongwe District Registry, Civil cause No. 122 of 2002. A writ of Delivery was issued on 22nd March, 2004 commanding the Sheriff of Malawi (Sheriff) and Trust Auctioneers & Estate Agents (Defendant) to deliver to Syed the minibuses, except two small minibuses or so much of them as would offset the storage charges. It is pertinent to reproduce the relevant part of the writ of delivery:


“Upon hearing counsel for the defendant.


And Upon reading the affidavit in support.


It Is Hereby Ordered That the Sheriff of Malawi and Trust Auctioneers & Estate Agents do immediately deliver to the Defendant the vehicles listed in the Attachment Order. Herein dated the 4th Day of February, 2002, except two small minibuses or so much of them as would offset the storage charges due to Trust Auctioneers & Estate Agents herein.


It Is Further Ordered that the said two small minibuses or much of them as would offset the storage charges be kept by the said Sheriff of Malawi and Trust Auctioneers & Estate Agents until the hearing of the defendant’s application to the court to determine the party to pay the said storage charges.”


The writ of delivery marked ex.MGM2. The sheriff and defendant released the minibuses in compliance to the order of the court.


In another development the same 15 minibuses were subject to yet another Attachment Order in the case of Saimfur Freight Vs Syed Muhammed Amini, Lilongwe District Registry, civil case No. 213 of 2002. The attachment order was dated 8th March, 2004. See ex. MGM. A warrant of execution was issued which authorised the sheriff to dispose by auction the minibuses. The auction exercise was carried out by the defendant herein. The total proceeds realized were K5,071,000.00. This amount was subject to the following deductions:


Commission at 10% K507.100.00

Surtax at 17% 17% K88,742.00

Storage First Order K555,750.00

Storage second Order K21,000.00

K1,172,592.00


Amount paid to the sheriff was K3,898,407.00 under cheque No. 000388 of 26th January, 2005.


The bone of contention is that plaintiff is arguing that defendant is not entitled to withhold or deduct storage charges pertaining to the first case Amini Bai Ismail V Syed Muhammed Amin. That the defendant is only entitled to K21,000.00 being storage charges for latter case Saimfur Freight vs Syed Muhammed Amin. Therefore, storage charges amounting to K555,750.00 withheld for the first case be surrendered to plaintiff.


This court is of the view that the second attachment order in the Saimfur Freight case did not abrogate the condition in the writ of delivery (MGM2). That is to the effect that the defendant by order of court to retain two small minibuses or so much of them as would offset the storages. This court finds that condition still legally effective.


One other issue to address relates to disclosure of the auction transaction. Plaintiff argues that defendant did not observe the principle of transparency. The defendant produced and sent to the sheriff a payment voucher ex. JSGI. This gives details of the auction and amount realized. Whereas ex. JSG2 is a report from the assistant sheriff to his boss the sheriff. The report gives details of the purchase price of each minibus, and service charges deducted.


It is observed that counsel for the plaintiff in his sworn affidavit deponed that defendant withheld K900,000.00. In his oral submission he mentioned K557,750.00. This court finds that the actual and correct amount is K555,750.00 which is stated in ex. JSG2.


This court is not satisfied so as to be moved to grant the mandatory injunction sought. The application fails. Costs to defendant.


PRONOUNCED in Chambers this day of 30th March, 2005 at Lilongwe.




R.R. Chinangwa

JUDGE