Sani and Another v Shabs Carriers and Another (387 of 2005) ((387 of 2005)) [2006] MWHC 86 (20 March 2006);

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IN THE HIGH COURT OF MALAWI

LILONGWE REGISTRY

CIVIL CAUSE NO 387 OF 2005


BETWEEN :


CATHERINE SANI & RABECCA SANI

(Suing on their own behalf as dependants

and representing the other dependants of the

estate of BENEDICT JONAS SANI and

MRS MULEUMBET M. SANI (deceased) ……………..PLAINTIFF


-and-


SHABS CARRIERS ……………………………….1ST DEFENDANT

ROYAL INSURANCE COMPANY LTD ……….2ND DEFENDANT



CORAM : HON. JUSTICE I.C. KAMANGA (MRS)


Kaphale; Counsel for the Plaintiff

Mapila; Counsel for the Defendant

Chulu; Court Interpreter



R U L I N G


HON. KAMANGA (MRS), J.


This is the defendant’s summons moving this court to withdraw an Order that was issued by the court on 15th February 2006 for the defendant to furnish security within a seven day period in default to wit the first defendant’s property was to be attached. The application is made under Section 14 of the Courts Act.


This is the background to the application. By a specially endorsed writ of summons that was issued by the court on 19th April 2005, the plaintiffs claim damages for loss of dependency and damages for loss of expectation of life in respect of an accident that occurred along the Lilongwe Dedza Road on 28th December 2003 in which the plaintiffs lost both parents. The defendants deny the claim. The matter has advanced to a stage that as at now, it is ready for hearing. On 15th February 2006, the plaintiff made an exparte application for an order requiring the defendant to furnish security, or, an order of attachment before judgment. The application was made under Section 14(3) of the Courts Act (Cap 3:02). Upon going through the documents, the court granted the prayer sought. In the formal order it was articulated as follows:-


“………. It is hereby ordered that within 7 days from the date of this order the 1st defendant do furnish such security with this court as would cover the sum of K51 million damages and K1.5 million legal costs and that in event of default, the following properties held by the 1st defendant BE and ARE hereby attached until further order …..”


The order goes on to list the properties that should be attached. On the 21st February 2006, the 1st defendant made an exparte application for stay of the order pending application for withdrawal of the order. The court ordered that the application should be made inter-parties. It has not been heard. On the same day, of 21st February 2006, the first defendant filed summons for the withdrawal of the order of attachment that had been issued on 15th February 2006. This is the subject of this ruling.


Section 14(1) of the Courts Act provides that in a civil action or suit, if the High Court is satisfied by evidence on oath that the plaintiff [a] has a good cause of action and that [b] the defendant, with intent to obstruct, defeat or delay the execution of any judgment that may be given against him, has disposed or is about to dispose of his property ……. [or has in any way negatively dealt with the property against the plaintiff’s interest] [c] at any time after the issue of the writ, the court may order the defendant to furnish security for such amount as it may deem fit, or in default may direct that any property of the defendant be attached until further order.


Section 14(3) provides a recourse for a defendant who is aggrieved with an order obtained under Section 14(1) in the following terms:-


“……… the court may at any time order the

attachment to be with drawn.”


Before dealing with the substance of the application that has been made by the defendant there is need to look at the sequence of events that transpired in the matter to assist the court to come up with the requisite verdict. If the events are scrutinized chronologically, one notices that upon receipt of the order of 15th February 2006, the defendants sought to move the court in two manners. By an exparte summon to stay the order pending application for withdrawal as well as though the inter-parties summons which is the subject of this ruling. It is worth mentioning that by the ex-parte application the defendant had sought to stay the execution. And the court ordered that application to stay be made inter-parties. In making such order that application be made inter-parties, the order of 15th February 2006 did not cease to operate. Yet no action was made by the 1st defendant to facilitate the inter-parties hearing of the application of stay of execution. Now we have the application for the withdrawal of the order. The 1st defendant has up to now not carried out the order of 15th February 2006. By their own conjecture the 1st defendants have sought to construe the order for an inter-parties hearing as an order of stay. That is jumping the gun and getting into others’ protected territory. The others herein shall mean the court. Until the court orders expressly on status of an order, no legal chamber has any mandate to construe court’s intention even in matters where the legal chamber is conversant with the legal process and clearly knows that as per the facts that appear the obvious decision will be a withdrawal. So I quote Romer C.J. in Hadkinson vs Hadkinson 1952 2 All ER @ 569 as cited in Isaac vs Robertson 1984 3 All ER @ 142 where it was noted that :-


“it is the plain and unqualified obligation of every person against, or in respect of whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void.”


I will also labour to state that since the 19th Century in Chuck vs Creamer 1846 1 coop temp coH 338 @ 342, it was noted that the court’s territory ought not be trodded by others that are not on the bench in the following terms:-


“A party, who knows of an order, whether null or valid, regular or irregular cannot be permitted to disobey it ……. It would be most dangerous to hold that the solicitors, or their solicitors, could themselves judge whether an order was null or valid – whether it was regular or irregular. They should come to the court and not take upon themselves to determine such a question.”


Then we have the Malawian 21st Century confirmation of this state of affairs in the Attorney General vs Dr Cassim Chilumpha MSCA Civil Appeal No 10 of 2006 where the court was of the impression that the State was deliberately refusing to obey a High Court, order [albeit because the State was of the view that the order had been erroneously being made and was sure that could be reversed on appeal]. And the Supreme Court noted that those who come to equity should come with clean hands and refused to grant the State’s prayer for a stay. It is on the same basis that the first defendant’s application for withdrawal of the court’s order of 15th February 2006 is hereby dismissed without discussing the merits or demerits of the order of 15th February 2006. For purposes of clarity, the order of 15th February 2006 still lives and will not be dismissed because the first defendant’s hands were not clean when they made the application.


MADE in Chambers this 20th day of March 2006.





I.C. Kamanga (Mrs)

J U D G E