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LAW, J.A.:
[1] This is an appeal by the Commissioner of Income Tax from a decision of
the High Court of Kenya (Farrell, J.) on a case stated under Order XXXIV of
the Civil Procedure Code. In those proceedings the appellant was the
unsuccessful plaintiff. The agreed facts and the questions of law for the
Court's determination are set out in the case stated as follows: ¬
"1. That the plaintiff is a corporation sole under and by virtue of section
148A of the East African Income Tax (Management) Act, 1958.
2. That the defendant is a company incorporated in Ireland.
3. That on or about the 10th day of June, 1966, the plaintiff began to
destrain upon certain goods and chattels of one Mulji Jetha Ltd. at its
premises at River Road, Nairobi, under his powers contained in section 125
of the East African Income Tax (Management) Act, 1958.
4. That the said Mulji Jetha Ltd. on the same day obtained an interim
injunction restraining the plaintiff from completing the said distraint, and
the plaintiff did not thereafter continue with the distraint.
5. That at the time the said Mulji Jetha Ltd. served the injunction
aforesaid upon the plaintiff; the plaintiff had seized the said goods and
chattels and had at the request of the said Mulji Jetha Ltd. agreed to leave
them on its premises pending the sale thereof.
6. That the said Mulji Jetha Ltd. thereafter applied to this Honourable
Court for a permanent injunction preventing the plaintiff from distaining
upon the said goods and chattels, in High Court Civil Suit No. 594 of
1966.The suit was dismissed on 29th July, 1966 and the interim order
referred to in paragraph 4 discharged.
7. That on or about 19th July, 1966, while the proceedings referred to in
para 6 were in train, the defendant purported to attach the said goods and
chattels at the premises of Mulji Jetha Ltd. in execution of a decree
obtained by it in High Court Civil Suit No. 474 of 1966, and seized and took
physical possession of them.
8. That the plaintiff and the defendant thereafter agreed that the defendant
complete its attachment of the said goods and chattels without prejudice to
the rights of the plaintiff, and that the proceeds thereof be held upon
trust for the plaintiff and the defendant jointly until it may be determined
whether the plaintiff or defendant is entitled to them.
[2] The questions of fact and of law upon which the opinion of this
Honourable Court is sought are as follows: ¬-
1. The plaintiff, having commenced distraint upon the said goods and
chattels and having been temporarily restrained from completing the
distraint by an interim order of the Court, which order was later
discharged, was the defendant lawfully entitled to attach the said goods and
chattels in execution of its decree?
2. Whether the plaintiff or the defendant is entitled to the proceeds of the
sale of the said goods and chattels? "At the trial of the case stated the
following document headed
"Sequence of Events" was put in by agreement:¬
[3] Mr. Goslin of the Income Tax Department served the warrant on the
Managing Director of Mulji Jetha Ltd. at 10.30 a.m.
[4] Mr. Goslin was accompanied by Mr. Pirbhai who took an inventory of the
furniture and sent his assistant to get a Gold Appraiser. No inventory of
the gold or jewellery was taken.
[5] Mr. Goslin and Kr. Pirbhai stayed at the premises until they heard of
the injunction at about noon when they left." The learned judge decided the
case stated in favour of the defendant (now respondent) finding that the
plaintiff (now appellant) discontinued the distress proceedings on being
served with the interim injunction, "as he was bound to do"; that the
appellant did not continue in possession and that "the only reasonable
interpretation of what happened is that he abandoned the distress reluctant
as he may have been to do so".
[6] In other words, the learned judge inferred from the admitted facts that
there had been an abandonment of the goods and chattels distrained upon by
the appellant, and he held that there was no legal impediment to the
execution subsequently levied by the respondent upon the same goods and
chattels, and he decided the case stated in favour of the respondent.
From this decision the appellant appeals. Before dealing with arguments
raised on this appeal, the history of events should I think be completed by
setting out the material portions of the interim injunction.
[7] It was ordered: - ¬
"That the defendant (the present appellant) his servants or agents are
hereby restrained from levying distress upon or removing from the
plaintiff's (Mulji Jetha Ltd.) premises any goods or effects the property of
the plaintiff therein pending the hearing of the said summons.
That the plaintiffs (sic) their servants or agents are hereby restrained
from disposing of or removing from the said premises any of the goods or
effects therein the property of the plaintiff pending the hearing of the
said summons.
That the plaintiff will indemnify the defendant against any loss which he
may suffer as a result of this order."
[8] With reference to this last paragraph, I would remark in passing that
there is not much point in ordering an applicant for an interim injunction
restraining a distress to indemnify against any loss the person seeking to
levy a distress, because such an indemnity is likely, as in this case to be
valueless.
[9] The better practice seems to be as stated in Halsbury's Laws of England,
3rd Edition, Volume 12,
paragraph 319 at pages 168-169, that is to say to refuse an injunction
(unless it is a flagrant case) except upon the condition of the applicant
paying the amount claimed into court; to which condition I would suggest the
possible alternative of the applicant providing independent security to
indemnify against any consequent loss if he cannot raise the amount claimed.
[10] A mere undertaking to indemnify is not a satisfactory condition to
impose upon an applicant for an injunction who, from the nature of his
application, is likely to prove insolvent. Mr. Lutta, for the appellant,
began by submitting that the distress in this case was completed before the
issue of the interim injunction, which in his submission was accordingly
superfluous and without effect.
[11] I do not think we can entertain this argument.
[12] Paragraphs 3 and 4 of the case stated, and paragraph 1 of the questions
for decision, make it clear that the matter was submitted to the High Court
on the basis that the distraint had been commenced, but not completed, and
it is clear from rule 4 of Order XXXIV that a party to a case stated is
bound by the statements contained therein.
[13] Mr. Lutta further submitted that the learned judge erred in holding
that the appellant abandoned possession of the goods and chattels on Mulji
Jetha Ltd.'s premises when his representatives left the premises on hearing
of the issue of the injunction. Mr. Lutta submitted that the effect of an
interlocutory injunction is merely to preserve the status quo pending
determination of the issues between the parties, and that the appellant, in
obeying the court's order restraining him from proceeding with the distress
and removing the debtor's goods, cannot be said to have done any act from
which the inference could reasonably be drawn that he intended to abandon
the distress.
[14] Mr. Lutta relied on Swann v. The Earl of Falmouth 108 ER 1112, and in
particular on the following extract from the judgment of Bayley J.:¬
"if therefore he (the landlord) quitted possession of the goods whilst they
remained on the premises, that was an abandonment of the distress but the
mere leaving of the goods in a place where he has the right to keep them,
without anything to indicate an intention to abandon the distress, cannot
operate as an abandonment."
[15] Mr. Lutta referred to sub-section (3) of section 125 of the East
African Income Tax (Management) Act, 1958, which gives the Commissioner the
right to leave goods which have been seized on the premises pending sale,
and he submitted that no inference of intention to abandon the distress
could be drawn from the appellant's action in this respect. Mr. Couldrey for
the respondents conceded that the appellant had possession of the goods when
he levied the distress, but submitted that he abandoned possession on
hearing of the issue of the interim injunction.
[16] Mr. Couldrey relied on the case of Hunt v. Hooper 152 ER 1365, in which
it was held that where a sheriff was issued with a writ of fieri facias for
execution, and the judgment creditor instructed the sheriff not to execute
the writ until further orders, such an instruction was equivalent to a
withdrawal of the writ, and Mr. Couldrey submitted that it makes no
difference whether the order of stay comes from the attaching creditor or
from the court – the effect is the same, there is in fact an abandonment of
the creditor's rights.
[17] I find myself unable to agree with this submission.
[18] In Lumsden v. Burnett (1898) 2 QB 177, possession of distrained goods
was given up by the sheriff On the strength of a document signed by the
debtor's daughter? a child of 13, without the authority or knowledge of the
debt to undertaking to allow the sheriff to re-enter at any time to resume
possession, and undertaking not to remove the goods from the premises.
[19] The Court of Appeal was unanimous that in these circumstances the
sheriff went out of possession with the intent of returning, and not of
abandoning possession. Smith L.J. said (at p. 182):¬
"the question is always one of fact, and is whether the sheriff by going out
of possession, as he did here, abandoned the possession."
[20] In my view the fact s of the present appeal are stronger than the facts
in Lumsden's case (supra) in favour of the appellant, who went out of
possession not on the strength of an undertaking given by an unauthorized
person, but in obedience to the terms of an interim injunction issued by the
High Court restraining him from taking any further steps in the distress,
pending the determination of the debtor's suit for a permanent injunction,
which was in the event dismissed.
[21] In my view, a distraining creditor can only be said to have abandoned a
distress if there is evidence of some intentional and deliberate act on his
part indicating that in quitting the premises he intends not to return.
[22] In this case the appellant left the goods and quit the premises solely
because of the issue of the interim injunction, intending to return if the
application for a permanent injunction was dismissed, and assuming that the
status quo would be maintained in the interval.
[23] I can find no evidence at all in the record to support the finding that
the appellant wilfully abandoned the distress, or intended to abandon it,
and I am satisfied that in fact he did not abandon it.
[24] For these reasons I would allow this appeal, set aside the order of
"the High Court declaring that the respondent is entitled to the proceeds of
sale of the debtor's goods, and substitute an order that the appellant is
entitled to those proceeds.
[25] The parties have agreed that there should be no order as to the costs
of this appeal.
DUFFUS, Ag. V-P.:
[26] I have read and entirely agree with the judgment of Law, J.A.
[27] It appears from paragraph 5 of the Case Stated that the appellant, the
Commissioner of Income Tax, had already seized the goods and chattels the
subject of the levy, at the time that he was served with the interim
injunction and had at the request of the debtor Mulji Jetha Ltd. agreed to
leave these on the premises pending the sale. The purpose of the interim
injunction was to ensure that matters were kept status quo until the
question was finally disposed of.
[28] This is in accordance with rule 1 of Order XXXIX of the Civil Procedure
(Revised) Rules, 1948, and is also apparent by reference to the interim
injunction itself.
[29] With respect, on the facts of this case, I cannot agree with the
learned trial judge that the appellant had abandoned the distress.
[30] It is clear that he only obeyed the order of the Court and proceeded no
further on the matter whilst the interim injunction was pending. On the
discharge of the interim injunction the matter reverted to the original
position i.e. that the appellant had already seized these goods and these
were in his constructive possession on the premises of the debtor in
accordance with the agreement between the debtor and himself.
[31] There was at this stage therefore no need for the appellant
DE LESTANG.P.:
[32] I have had the advantage of reading in draft the judgment prepared by
Law, J.A.
[33] I am in complete agreement with it.
[34] Duffus, Acting Vice President also agrees, there will be an order in
the terms proposed by law, J.A. |
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