IN THE HIGH COURT OF MALAWI
CIVIL CAUSE NO. 3575 OF 1999
MOBIL OIL (MW) (Pty) LIMITED................................PLAINTIFF
MALAWI RAILWAYS LIMITED........................1ST DEFENDANT
MALAWI LAKE SERVICES LIMITED..............2ND DEFENDANT
SATEHZAN LIMITED......................................3RD DEFENDANT
CORAM: THE HON. JUSTICE A.C. CHIPETA
Mr Nkhono; of Counsel for the Plaintiff/Respondent
Mr Ndau; of Counsel for the 2nd Defendant/Applicant
Mrs Chingana, Official Interpreter
The substantive matter is between the plaintiff company, which I will
hereafter alternately simply refer to as Mobil, and three defendants as
appears in the title of the case. Out of all these parties this ruling
only relates to two parties. The Applicant is the
second defendant, Malawi Lake Services Limited, and the Respondent
is the plaintiff.
Before I come to the question that I am supposed to determine in this
application, I think it is necessary to lay a little background in the
case. The facts which are not in dispute are that in 1988 Plot No.
241 at Monkey-Bay in Mangochi then property of the 1st defendant (Malawi
Railways Limited), was let to Mobil on a three year lease. (See Applicant’s
exhibit “SC2”). Later that same year it was agreed between the same
parties that, subject to government approval, on expiry of the three year
lease the parties would enter into a ten year lease on the same property.
(See Applicant’s exhibit “SC1”). However the 1st three years lease
ended up elapsing without the relevant government approval being secured.
Even to date that approval has not yet been secured. This notwithstanding
all this time Mobil has been and still is on the property in question.
In the long period of time that has elapsed some significant changes have
taken place. In 1994 Malawi Railways Limited was restructured.
A result of that exercise was the creation of Malawi Lake Services Limited
and the assignment of the Plot in question from its original owner, Malawi
Railways Limited, to this new company. Efforts by Malawi Lake Services
Limited to enter into a lease agreement concerning the same Plot with some
party other than Mobil, and subsequent efforts by that other party to evict
the old tenants, Mobil, from the property in question has ignited such
friction that Mobil is suing or being sued left, right and centre, so to
speak, in relation to this property. I am verily informed by both
learned Counsel in this case, that the present case is only one out of
the many that have been commenced.
The quarrels in these cases basically revolve around the questions:-
(a) whether the three year lease having elapsed and the
ten year lease not having materialized Mobil has any tenancy rights over
the property in question, and if so what rights;
(b) whether if Malawi Lake Services Limited has indeed taken over
ownership of the property herein, it has or has not so assumed title thereon
subject to the obligations and liabilities that used to bind its predecessor
in title, i.e. Malawi railways Limited; and
(c) what place, if any, Mobil occupies in this new arrangement of title
vis-a-vis Malawi Lake Services Limited, the successor in title.
All these questions will be fully answered in due time when this case
and its sister cases reach trial.
For the present what is of concern is the interlocutory injunction Malawi
Lake Services obtained against Mobil on 4th December, 2000 on an ex-parte
application. The order in question restrains Mobil from subletting,
assigning or transferring possession of a filling Station on the Plot in
question herein or from offering the same to the public or to any other
person or in any other manner granting its possession to some third party
without the permission of Malawi Lake Services. The restraint order
extends beyond Mobil to its servants or agents and bears the usual undertaking
as to damages. It was directed that the order be and remain in force
pending the hearing of an inter-partes application or until further order
What triggered the securing of the interlocutory injunction now under
consideration, it appears, is a Newspaper advertisement as depicted in
exhibit “SC3” of Malawi Lake Services in its ex-parte summons. The
title thereof read “Monkey-Bay Filling Station up for Grabs”. This
advertisement offered to members of the public an opportunity to run the
filling station in question and called for applications before 29th November,
2000. Besides, as an attraction to would-be applicants, the advertisement
cited “Good volumes, reliable fuel deliveries, adequate tankage, impeccable
service reputation and many more.”
At the hearing of this inter partes summons Mr Ndau, of Counsel for
the Applicant, forcefully argued for the continuation of the injunction.
Part of the argument was that the plaintiff wants the injunction to continue
in order to preserve the status quo. The thrust of the argument was
that as matters stand Mobil’s current continued occupation of the Plot
is itself in question and that this case will determine whether it continues
in occupation or not. It is thus felt by the Applicant that in the
circumstances Mobil should not be allowed to transfer occupation or possession
of the property in question to any third party. Among authorities
cited in support of this status quo argument were the cases of Satehzan
Limited -vs- Mobil Oil (Pvt) Ltd Civ. 3456 of 1999 (unreported), Mangulama
and Others -vs- The Development of Malawi Enterprises Trust Civ. 1893 of
1996 (unreported), and Lunchbox Limited -vs- Malawi Property Investment
Co. Ltd. Civ. 1702/96 (unreported).
A second point presented for urging the continuance of the interlocutory
injunction was to the effect that in the circumstances prevailing Mobil
must be viewed as a tenant at will and that as such it cannot sublet or
transfer possession of the property herein to a third party as it would
be unlawful for it to do so. The first limb of this argument was
based on the expiry of the original three year lease between Mobil and
the Applicant’s predecessor in title and the failure to materialize of
the intended subsequent ten year lease. Mobil’s continued occupation
in this scenario, it was argued, amounts to nothing beyond a tenancy
at will, based as it was on a letter of intent rather than a lease proper.
It was submitted that such type of tenant has no right to sublet or to
transfer possession without the consent of the landlord. Support
in this regard was drawn from pages 264 and 265 of Woodfall’s Landlord
and Tenant (1st ed.).
The second limb of this argument stemmed from the allegation that since
the expiry of the initial three year lease, Mobil has not paid any rents
to the Applicant as Landlord. Here Mr Ndau, of Counsel for the Applicant,
referred to the case of King Flower Limited -vs- Lingazi Farm Ltd Civ.
951 of 1996 (unreported) where he said it was held that occupation without
paying rent where there is no formal agreement creates a tenancy-at-will.
It was accordingly submitted that at common law such a tenant has no right
to sublet and that therefore the plaintiff herein should rightly and properly
be restrained from transferring possession of the premises in question
to any third party.
Extending the argument the Applicant contended that there being no formal
agreement covering the period after the first three years, the plaintiff’s
continued occupation should proceed to be governed by the terms in the
initial three year under lease. In particular reference was made
to Article 13 of exhibit “SC2” which prohibited Mobil from sub-letting
or parting with possession of the property without the written consent
of the landlord. At this point pages 255 and 264 of Woodfall’s Landlord
and Tenant were referred to in support of this argument.
In answer to the Applicant’s demand for the continuation of the interlocutory
injunction herein Mobil through Mr Nkhono, of Counsel, in its turn forcefully
argued that rather the injunction should be discharged. The first
argument taken up was that there is nothing in the advertisement it put
up to suggest intent to sublet or transfer the landed premises herein.
It was contended that the Filling Station business herein as a franchise,
Mobil could allow other people to manage and operate it and that if it
was desired to employ a person in the form of a Manager or Operator Mobil
can easily do so without letting go of the possession of the premises.
Mobil thus felt that the application for interlocutory injunction in this
matter was extremely pre-mature.
Going a step further it was Mobil’s argument that the matter not having
advanced beyond the stage of advertisement there is no telling what agreement
will be entered into if any person’s offer is accepted. At this point
the Respondent conceded that if it wanted to sublet the premises to anyone
attracted by its advertisement it would need the consent of the landlord
who legally would not be expected to withhold consent unreasonably.
Mobil then accused the Applicant of abusing the process of the court in
assuming that Mobil wanted to sublet and rushing for an injunction instead
of just enquiring on their intentions before resort to this process.
Mobil next disputed the Applicant’s assertion that it is a tenant at
will. Confirming that there have been and are a number of cases in
court concerning the Filling Station in question, reference was made to
Civ. 106 of 2000 Mobil Oil Malawi Limited -vs- F Sacranie (unreported)
where it is said that in the course of granting a mandatory injunction
Hon. Mwaungulu, J. made a number of pertinent findings. In this case
Mr Nkhono argued that the legal rights and obligations in respect of this
filling station were fully canvassed and that one of the important findings
the court made was that Mobil had a valid 10 year lease due to expire on
30th September, 2001. On basis of the findings in that ruling it
was thus submitted that the argument about Mobil being a tenant-at-will
misguided. In obtaining this interlocutory injunction, it was
further argued, that the Applicant is unreasonably interfering with Mobil’s
operation of its filling station without any legal justification.
Let me first observe that it is clear from the way this case has projected
itself to me that there is conspicuous animosity and lack of liaison spirit
between Mobil and Malawi Lake Services. I believe when parties are
in a Landlord and Tenant relationship or a relationship akin to this, as
is the case between these two, the duty to communicate or enquire one from
the other is not a one way process but a mutual one. Mobil has clearly
been a tenant in the original 3 years and may well still be such for the
period between then and 30th September, 2001 at the premises in question
and all evidence points at Malawi Lake Services as the successor in title
to Mobil’s original landlord. The way argument has proceeded in this
case however is as if Mobil has no obligations whatever towards this successor
in title and that it is only incumbent on the latter when worried about
Mobil’s conduct on the plot to make an inquiry before it can take any legal
step. If the parties indeed stand in the position of relationship
of Landlord and Tenant or its equivalent with each other I do not honestly
see why Mobil, as a tenant or equivalent of a tenant, even if for more
than a decade now, should not even feel a scintira of obligation or courtesy
to share its plans and to volunteer its intentions with its landlord especially
if such plans are liable to raise eyebrows, if only to avoid being misunderstood
and/or being querried or sued. I thus certainly do not buy the argument
which suggests that the obligation in this case only lay on the Applicant,
before it could seek an injunction, to enquire what the true intentions
of Mobil were in fashioning out the advertisement they put up. Mobil itself,
I think, could have forestalled both the possible inquiry which it claims
should have taken place and the process for injunction if, assuming it
indeed had no harmful intentions, it allayed the landlord’s fears in advance
vis-a-vis the true aim of the advertisement.
Leaving this aside the compound question before me is whether the interlocutory
injunction already granted herein should be allowed to continue until trial
of the action or whether it should be dissolved or discharged at this stage.
It is to be borne in mind that the only tenancy concerning this plot on
which both the parties have no misgivings is the initial three year one
from 1988 to 1991.
As regards the 1st October, 1991 to 30th September, 2001 tenure of relationship
the parties are certainly not at ad idem with each other regarding the
exact relationship they have so far enjoyed or suffered and even as regards
who is owing what obligation to who in the material period of time.
Further, owing to the mutual suspicion which the parties appear to passionately
harbour against each other and also due to the diametrically opposed views
which they seem to hold as regards which party has what rights on the property,
currently Mobil’s continued occupation of the plot in question is the subject
of challenge in litigation in multiple cases. Indeed it is quite
plain now that if it were not for grace of force of injunction Mobil may
well already have been evicted from the plot. Added to this is the
fact that the uncertain 10 years relationship conteplated by the parties
at the outset is has now reached its sunset and was in fact already in
its last 10 months or so when the plaintiff surprised the Applicant with
the advertisement now subject- matter of injunction. As matters stand
therefore this advertisement was only adding to what was already a complicated
and volatile situation. Against this background I do not find it
surprising why the Applicant had to feel so sensitive when this advertisement
came up. With litigation in the air with a number of cases at various
stages of advancement and with injunctions and counter-injunctions balancing
the precarious relationship between the various stakeholders in the plot,
it was, I think, to say the least, quite provocative of Mobil to go to
the papers and put the very subject- matter of these conflicting interests
“up for grabs” by members of the public.
Looking at the advertisement itself I can hardly believe it to be one
looking for a Manager or Operator of the business on behalf of the plaintiff.
If that was the case I am sure the advertisement could have well appeared
in the nature of a declaration of existence of a vacancy. On the
contrary the advertisement appeared to be positively fishing out for someone
who would take over and run the filling station independently, hence the
blowing of the trumpet on the advantages attending the filling station
in question including “impeccable service reputation” which appears to
me to be an advertisement of the existence of the goodwill the successful
Applicant would benefit from. In case, however, Mobil are sincere
in their plea that all they had were innocent intentions in putting up
this advertisement and nothing in the nature of subletting the property,
all I can say is that the construction they are putting on the advertisement
would not be so obvious to the ordinary reasonable man. It accordingly
strikes me that Malawi Lake Services Limited were justified in being alarmed
by this advertisement and in taking the steps they took to protect their
I have already indicated earlier that when this case and others like
it finally get tried it will be judicially determined what exactly the
relationship was between the parties herein in the 10 years now expiring
that was not crowned with any formal lease agreement. What is clear,
however, is that whether or not their relationship was one of a tenancy
at will or a proper tenancy, both parties herein are well agreed that if
Mobil were to sub-let or transfer occupation of the plot in question to
a third party it would definitely need the written consent of the landlord.
This being the case if, as I have feared above, the advertisement amounted
to a threat to the Applicant’s landlord rights, then the Applicant cannot
be faulted for taking steps to restrain Mobil in its endeavours.
I would thus tend
to think that the restraint secured must remain in force until the
action is duly determined with appropriate pronouncements on the rights
of the parties against each other.
In case I be accused of turning a blind eye against the findings of
my brother Judge Hon. Mwaungulu, J. in Civ.106 of 2000 in Mobil Oil (Malawi)
Limited -vs- F. Sacranie (unreported) let me mention that I have fully
read the decision that was cited. I observe that it was a decision
on the grant of a mandatory injunction to Mobil in that case. As
I understand it such injunctions are normally granted to a party that has
an unusually strong and clear case. A fact that still remains however
is that even if such injunction is granted it does not mean that the case
is finally decided. The case normally still has to go ahead for both
parties in the case to present their positions and the court remains free
either to decide in line with the mandatory injunction it granted or to
back-track and decide counter to it. I therefore do not think that
the findings my brother Judge made in that order have the finality ascribed
to them as the order sought after at that stage was for purposes of interlocutory
and not final relief between the then quarrelling Mobil and F. Sacranie.
I thus cannot take it that it was finally determined that Mobil had a valid
ten year lease and was not a tenant-at-will as that point was only going
to be finally clear on delivery of judgment at the very end of the case.
I dare add that until that case could progress to finality that decision
bound Mobil and F. Sacranie. I however have reservations about treating
that decision as licensing Mobil to deal with its landlord, even if only
a successor landlord, with contempt or impunity. A landlord is a
landlord and a tenant is a tenant regardless of length of title and regardless
of developments relating to succession in title.
I recall to mind that the usual purpose of an interlocutory injunction
is to preserve the status quo pending the determination of the rights of
the parties in an action per Note 29/1/2 in Order 29 rule 1 of the Rules
of Supreme Court. I also note that the absence of formalisation of
lease agreement between Mobil on the one hand and Malawi Railways Limited
or its successor in title on the other hand, in regard to the long period
of ten years, is the one that gave birth to uncertainty and insecurity
among the various parties with interest in the property in question and
that this is what led to the chain of suits now in existence. It
is my further observation that while the contentious period of 10 years
was progressing towards its end it was, as it were, necessary to maintain
a kind of truce between the parties pending judicial determination of the
existing actions. I take the view that in this situation when Mobil
evinced in the papers its readiness to have the property in question “grabbed”
by whoever happened to be the successful applicant, especially at such
a late stage in this troubled ten years period, it was rather disturbing
the status quo and breaking the “truce” situation that had been reached.
All said and done I think my brother Hon. Justice Chimasula Phiri was right
in this case to grant the interlocutory injunction he granted herein.
I order that this injunction should continue in force until this action
is finally determined at the end of the trial and award costs of the application
to the Applicant.
Made in Chambers this 4th day of October, 2001 at Blantyre.