CIVIL CAUSE NO 713 OF 2000
BINA M W KAKUSA ........................................................ DEFENDANT
The defendant, Bina Kakusa, applies to vacate or vary an ex parte mandatory injunction of 4th May, 2000. Mrs. Mulele, the defendant’s legal practitioner, argues the ex parte order should not have been granted in the first place. She relies on a decision of this court. There are difficulties with the decision relied on as we will see shortly. The plaintiff wants the injunction sustained because he paid the plaintiff for use of the car for the time that the defendant has to serve with the company. She is apprehensive the motor vehicle may be damaged and she could be put at a grave risk. The defendant wants the car to the end of the notice.CORAM: D F Mwaungulu
The situation sounds unusual. It happens many times. There are
many similar applications in this court. Factual complexions vary. All
however involve holding over motor vehicles or employers’ property after
dismissal or termination of employment. Here we know that the plaintiff
is serving his notice. His employment is up to month end. As employee he
is entitled to use a company car. The plaintiff company want the car..
The company offered him K10, 000 in lieu of use. The defendant rejected
the money. He wants the car to the end of employment. The plaintiff came
to court. She sues for damages for conversion and possession of the motor
vehicle. The writ is not indorsed with a permanent injunction. The company
obtained an ex parte injunction. The ex parte injunction took the motor
vehicle from the defendant.
“I have not read the judgement in Re First Express Ltd., (1991) The Times, 10 October. The case is cited by the authors of Civil Litigation, J O’Hare and R N Hill, Sweet & Maxwell, 8th ed. 1997, 290. That judgement is not binding on this Court. It is persuasive. It is however good law. Generally the court should grant an ex parte injunction where giving notice to the opponent would cause injustice to the applicant because of the urgency of the matter or because a provisional order is necessary for surprise. Further it should not be given unless it is clear to the Court that the risk in damage to the defendant cannot be compensated in money or is outweighed by the risk of injustice to the applicant.”
The stringency features in English practice. In Bates v Lord Hailsham of St Marylebone and others,  3 All ER 1019, the plaintiff applied ex parte to stop a meeting due a few hours later. He had three months notice of the meeting. In rejecting the ex parte application Megarry, J, said:
“An injunction is a serious matter, and must be treated seriously. ... Ex parte injunctions are for cases of real urgency, where there has been a true impossibility of giving notice of motion.”
Even then courts still refuse applications for an ex parte injunction unless there is a very good case on the merits. Megarry J, went on to say:
“Accordingly, unless perhaps the plaintiff had had an overwhelming case on the merits, I would have refused the injunction ...”
Ex parte injunctions are intended for the time, usually a very short time, the next motion day (which can be abridged on urgency and emergency), to enable an inter partes application. They are for cases of real urgency and emergency as where property is in danger of being lost or destroyed (London & County Banking Co v Lewis, (1883) 21 Ch D 490; Fenwick v E London Railway, (1875) L R 20 Eq 544, 547. It is probably on this principle that PEW Ltd v Mvula was decided. The employee had no driving licence. The facts here are very different. There is nothing in the affidavit in support of the application to show any danger that the motor vehicle will be lost or destroyed. None of their lordships in the English cases cited and indeed many not cited, in stating there should be danger property could be lost or destroyed, referred to fanciful possibilities. Neither were they referring to just a possibility, however, remote that the property would be lost or destroyed. Every one of us can be involved in an accident where, like here, a motor vehicle can be destroyed, lost or stolen. The law, and an ex parte injunction in particular, cannot successfully protect us from such possibilities and vicissitudes of life. An ex parte injunction should be granted where there is real likelihood that the property could be lost or destroyed. That is not so here. I would therefore have refused the ex parte injunction for lack of urgency or emergency. I would have deferred the ex parte application to a hearing inter partes.
Here the application was for a mandatory injunction ex parte. That required more caution. I heard the plaintiff and the defendant on the application to vacate or vary the application. The hearing can be treated as an application inter partes. The question is whether on the facts I should grant an interim mandatory injunction. I ignore that the order actually drawn by the plaintiff is a permanent injunction. The judge did not grant this order granted. The judge granted an ex parte mandatory injunction.
PEW Ltd v Mvula was Justice Tambala’s judgement. The judgement is unclear whether the application was for an interlocutory or permanent injunction. If the application is for a permanent injunction, the judgement has limited application here where the plaintiff applies for an interlocutory mandatory injunction. The application was more likely for a mandatory interlocutory injunction. The judge said in the judgement, ‘I bear in mind the principles which guide the court when deciding whether to grant an interlocutory injunction stated in the case of American Cynamid Co v Ethcon Ltd,  A C 396. I appreciate that the granting or refusal to grant such injunctions is the subject of the courts’ exercise of its discretion.’ The court, however, said earlier that the application was for a mandatory injunction. The American Cynamid Co v Ethcon Ltd and Canadian Pacific Ltd v Morris and another,  A C 652 cited by the Judge were not binding on him. The case of Canadian Pacific Ltd v Morris and another is incorrect. The case on the page of the report is Redland Bricks Ltd v Morris and another. That case deals with permanent injunctions. It does not deal with interlocutory mandatory injunctions.
If, as the Judge found, the application was for an interlocutory mandatory injunction, the principles in American Cynamid Co v Ethcon Ltd do not apply. The principles in American Cynamid Co v Ethcon Ltd are irrelevant to mandatory injunctions. The case has to be unusually strong and clear before the mandatory injunction can be granted at the interlocutory stage. Courts are reluctant to grant mandatory injunctions at an interlocutory stage. In the exceptional circumstances in which courts do so, courts require a high probability that the plaintiff’s claim will succeed. The judgement of the Court of Appeal in England in Locabail International Finance Ltd v Agroexport  1 WLR 657 was not considered by the court in PEW Ltd v Mvula. The judgment of Mustill, LJ, underscores the point that the principles in American Cynamid Co v Ethcon Ltd do not apply to mandatory injunctions. The judgment underlines the reason for such a rule. Mustill, LJ, said:
“It was pointed out in argument that the judgment of Megarry J antedates the comprehensive review of the law as to injunctions given by the House of Lords in American Cynamid Co v Ethcon Ltd  A.C. 396 but to my mind at least, the statement of principle by Megarry J in relation to the very special case of the mandatory injunction is not affected by what the House of Lords said in the Cynamid case. The matter before the court is not only an application for a mandatory injunction, but is an application for a mandatory injunction which, if granted, would amount to the grant of a major part of the relief claimed in the action. Such an application should be approached with caution and the relief granted only in a clear case.”
Lord Justice Mustill approved the statement of principle of Megarry, J., in Shepard Homes Ltd v Sandham  Ch. 340, 351:
“Third, on motion, as contrasted with the trial, the court is far more reluctant to grant a mandatory injunction than it would be to grant a comparable prohibitory injunction. In a normal case the court must, inter alia, feel a high degree of assurance that at the trial it will appear that the injunction was rightly granted; and this is a higher standard than is required for a prohibitory injunction.”
Interlocutory mandatory injunctions are exceptions to the principles in American Cynamid. This court is not bound by its decisions. It gives appropriate comity to its judgments. Obviously if the decisions of the Court of Appeal and of Megarry J had been brought to the attention of the judge in PEW Ltd v Mvula he would not have been guided by the principles in American Cynamid Co v Ethcon Ltd.
The judge however referred to Redland Bricks Ltd V Morris and Others. That case and Canadian Pacific Ltd v Gaud  2 KB 239, which the judge purported to cite, dealt with permanent injunctions. The principles about mandatory injunctions Lord UpJohn laid down in Redland Bricks Ltd V Morris and Others, no doubt, should pervade a judge considering an interlocutory mandatory injunction. They are considerations which are critical at the trial for a permanent mandatory injunction. In relation to interlocutory mandatory injunctions more is required. Megarry, J, said in Shepherd Homes Ltd v. Sandham at page 349:
“Nevertheless, it is plain that in most circumstances a mandatory injunction is likely, other things being equal, to be more drastic in its effect than a prohibitory injunction. At the trial of the action, the court will, of course, grant such injunctions as the justice of the case requires; but at the interlocutory stage, when the final result of the case cannot be known and the court has to do the best it can, I think the case has to be unusually strong and clear before a mandatory injunction will be granted, even if it is sought in order to enforce a contractual obligation. If, of course, the defendant has rushed on with his work in order to defeat the plaintiff’s attempts to stop him, then upon the plaintiff promptly resorting to the court for assistance, that assistance is likely to be available; for this will in substance be restoring the status quo, and the plaintiff’s promptitude is a badge of the seriousness of his complaint.”
In the case under consideration the plaintiff’s claim for conversion is not that convincing, to say the least. Obviously the defendant is entitled to plead to such a claim that he was entitled under the contract to the use of the car as long as he was employed by the company. He is entitled to plead that the taking of the car from him was in breach of his a contract. I have real difficulty in appreciating the steps that the plaintiff took in taking the car off the defendant who has up to May to hand over the motor vehicle. I would expect that even if the plaintiff wanted to pay in lieu of use of the car, they would, as long as the defendant refused payment in lieu, be in breach of the contract. Nevertheless even if the plaintiff succeeded in the action, they could be compensated in damages for the use of the car for only one month. There is nothing to suggest that the defendant was not going to surrender the car at the end of May. Even if he did not, the remedy is still in damages. There is suggestion that the defendant could be involved in an accident and put the plaintiff to immeasurable loss. I do not think that is important. If that happened, the remedy would still be in damages. There is nothing to suggest that the defendant cannot pay those damages. Regardless, if loss or damage is anticipated, the test is not as simplistic as is suggested for the plaintiff. Lord Upjohn said in Redland Bricks Ltd v Morris at page 665:
“A mandatory injunction can only be granted where the plaintiff shows
a very strong probability upon the facts that grave damage will accrue
to him in the future. As Lord Dunedin said in 1919 it is not sufficient
to say “timeo.” [Attorney-General for the Dominion of Canada v Ritchie
Contracting and Supply Co A.C. 999, 1005, P.C.]. It is a jurisdiction
to be exercised sparingly and with caution but in the proper case unhesitatingly.”
The ex parte order is set aside with costs to the defendant.
Made in Chambers this 11th Day of May, 2000.
D F Mwaungulu