IN THE HIGH COURT OF
PRINCIPAL REGISTRY
Civil cause number 3155
of 2003
Between
M.
KATSONGA PHIRI ………………………………………………….. Plaintiff
And
CANDLEX
LIMITED …………………………………………………….Defendant
CORAM: DF MWAUNGULU (JUDGE)
Plaintiff, absent
Ndau, legal practitioner, for
the plaintiff
Mwaungulu, J.
ORDER
The defendant, Candlex (Malawi)
Limited applies to dissolve an injunction the plaintiff, Mr. Katsonga Phiri, obtained
ex parte on 3rd December,
2003. The injunction compelled the defendant to allow the plaintiff and his
tenant to use the passage through the defendant’s premises to the plaintiff’s
warehouse. The plaintiff, it seems, relies on a right of way enjoyed over
adjacent land. The defendant wants to dissolve the injunction because, the
defendant alleges, the injunction was wrong in principle and the plaintiff suppressed
facts. The plaintiff was absent during the hearing.
According to the plaintiff’s supporting
affidavit to the ex parte application,
the premises border the defendant’s. The plaintiff accesses his premises
through the defendant’s. The defendant closed the access. Consequently, the
plaintiff and his tenant, Office World, cannot access through the defendant’s
premises. The defendant contends the plaintiff excluded from the court the fact
that the defendant’s was private land. He contends the plaintiff should have
informed the court other accesses to the warehouse and that the plaintiff’s
warehouse is not in the defendant’s premises. In my judgment, the plaintiff disclosed
material facts essential to the application. In Maida v Maida Civil Cause number 14 of 2003, unreported, this Court
said:
“In my
judgment, it would not have made any difference if this information, which the
plaintiff discredits, was before the judge. The Supreme Court of Appeal in Vitsitsi v Vitsitsi MSCA Civ App. No. 4
of 2002, unreported, confirmed this Court’s view that an injunction will be
dissolved if the applicant suppresses information which, if before the court,
would have materially affected the determination. The facts unavailable to the
court on which to impugn an earlier injunction must be material to the
determination.”
Although it was unnecessary to do so,
the defendant’s affidavit discloses the defendant’s ownership of the land
adjacent. Trial will determine whether, as the defendant alleges, the plaintiff
could access his premises from other places. Trial will also determine whether that
the plaintiff had other accesses disentitles him from an easement which, on the
supporting and opposing affidavits, he has in the form of a right of way on the
defendant’s land. The defendant’s contention that because its premises are
private land entitles it to exclude for security reasons the plaintiff access
is, in my judgment, part of the general question at the trial in determining
the plaintiff’s right of way. There was,
therefore, in my judgment sufficient disclosure establishing an easement
enforceable by an interlocutory injunction.
Consequently, the defendant cannot
contend that there was no legal basis for the plaintiff‘s application. The
common law recognises the rights of an owner of land, easements or profits a prendre, over adjacent land: Robins v Barnes (1615) Hob 131; Metropolitan Rly Co v Fowler [1892]1 QB 165 at 171, per Lord Esher, MR; affd.
(1893) AC 416; Hewlins v Shippan
(1826) 5 B and C 221 at 229, 230 per Bayley, J.; Mounsey v Ismay (1865) 3 H and C 486 at 497, per Martin, B; Reilly v Booth (1890) 44 Ch D 12 at 26, CA; peers v Lucy (1694) 4 Mod Rep 362; and; Baker v Brereman (1635) Cro Car 418.Taff Vale Rly Co v Cardiff Rly Co (1917) 1 Ch 299 at 317,
CA, per Scrutton, L.J. A right of way,
whether by prescription or implication by law, is the oldest and typical
easement known to the law Ballard v Dyson
(1080) 1 Taunt 279; Cannon v Villars
(1878) 8 Ch D 415. The right of way most certainly arises where both the
dominant and servient tenements were in common ownership and the common owner
disposes one: Bayley v Great Western
Railway Co (1884) 26 Ch D 434 at 452 – 453; Milner’s Safe Co Ltd v Great Northern and City Railway Co Ltd [1907]
1 Ch 208. There could be a right of way by necessity: Wheeldon v Burrows (1879) 12 Ch D 31 at 49; and Aldridge v Wright [1929] 2 KB 117.
On the whole, the plaintiff did not fail
to disclose material facts to the court that initially granted the ex parte injunction. The affidavit
established a right to adjacent land a court can protect by an injunction. The
injunction is, therefore, not discharged.
There is, as both I and counsel noted,
a discrepancy between the order I indorsed on the file and the order finally
signed and served on the defendant. My order was for the injunction to last
four days. The order actually served on the defendant and initialed by me is
for the injunction to last up to trial. This is not a slip that should be
amended on mere suggestion or discovery of the error. The defendant can make an
appropriate application to rectify the error.
Made in court this 29th Day
of December, 2003.
DF Mwaungulu
JUDGE