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SPRY, V-P.
[1] A consent judgment was entered in certain proceedings in the High Court,
in pursuance of which the respondent company (to which I shall refer as
Akira) executed a chattels mortgage over 1,200 head of cattle in favour of
the appellants.
[2] The present suit was brought by Akira and another company, the name of
which has since boon struck out, for a declaration that the chattels
mortgage, and certain other instruments with which we are not now concerned,
wore void and unenforceable.
[3] In purported exercise of the powers conferred by the chattels mortgage,
the first appellant (to whom I shall refer as Mayers) seized the cattle and
removed them.
[4] The two plaintiff companies then applied exparte for an injunction to
prevent the sale of the cattle and to order their return. An injunction was
granted, as prayed, on 18th December, 1969. As soon as they became aware of
it, the appellants moved to have it set aside.
[5] The mandatory injunction was immediately suspended but the application
for rescission was not disposed of until 1st April, 1971. The learned judge
who heard the application discharged the injunction but refused to order an
enquiry into damages, an order for payment of damages so found and a stay of
the proceedings until payment.
[6] It is against that refusal that the present appeal is brought. The
application for the injunction was rightly criticized as not complying with
the practice as set out in Noormohamed Janmohamed v. Kassamali Virji Madhani
(1953) 20 E.A.C.A. 8.
[7] The order granting it was criticized partly on the ground that it should
not have been made because the affidavits supporting the application did not
prove the essential requirements prerequisite to the grant of an injunction
and partly because the applicants were not required to enter into an
undertaking as to damages.
[8] I think there is substance in both these criticisms. As regards the
latter? there does not appear to be any East African authority laying down
any rule of practice.
[9] In England, such undertakings are invariably required, save in certain
special circumstances, such as application on behalf of the crown.
[10] I do not know the practice in India, but Order .39, rule 2(2) in the
First Schedule to the Civil Procedure Code, 1908, allows the court, when
granting an injunction, to impose terms, and it appears from the
commentaries that this power has been used to require an undertaking as to
damages. When that rule was reproduced in the Kenya Civil Procedure (Revised)
Rules, 1948, the words “an inquiry as to damages" were inserted, which
suggests that the intention was that the English practice should be followed.
[11] Be that as it may, I am firmly of the opinion that, save in exceptional
circumstances, such an undertaking should always be required when an
interlocutory injunction is granted.
[12] This brings me to a matter on which we thought it desirable to ask
counsel to address us, as it touches on jurisdiction. The application for
discharge of the injunction, which was headed inter alia with a reference to
section 97 of the Civil Procedure Act, contained a prayer for such further
or other order as the justice of the case might require.
[13] At the hearing of the application, Mr. Khanna, who appeared for the
appellants, specifically asked for an order for an enquiry into damages and
the consequential orders. It was quite apparent from the affidavit annexed
to the application that a very large sum would be claimed. We wished to be
satisfied that the High Court had jurisdiction, in the circumstances, to
make the order sought and that the procedure adopted was correct.
[14] Mr. Khanna made various submissions on those matters. First, he
submitted that section 64 of the Act, to which we had referred him, could
not apply to the high Court. That section allow the court, on application,
summarily to award compensation not exceeding two thousand shillings to a
defendant as compensation for expense or injury caused to him by a temporary
injunction granted on insufficient grounds.
[15] Mr. Khanna argued that if it applied to the High Court, it would be in
derogation of the unlimited jurisdiction of the court and so be
unconstitutional. With respect, I see no merit in that argument.
[16] The fact that the High Court is a court of unlimited jurisdiction does
not mean that the legislature cannot limit the relief to which a person is
entitled or oven deprive him of relief, as indeed is done by the laws
relating to limitation of actions. I can see nothing in section 64 itself to
suggest that it applies only to subordinate courts and I am firmly of the
opinion that it, like the section which precedes it, applies also to the
High Court.
[17] I may add that it would appear from the commentaries of Mulla and
Chitaley and Rao on the Indian Code that section 95, from which the Kenya
section 64 was derived, is invoked by the High Courts in India.
[18] Secondly, Mr. Khanna argued that section 64 should be read subject to
section 91, which provides for restitution and imposes no limit. He conceded
that section 91 applies only when a decree is varied or reversed, and that,
I think, disposes of this argument.
[19] Thirdly, he argued that the limitation imposed in section 64 should
only apply to applications brought under that section. This brought him to
his main argument, which was, that nothing in the Act affects the inherent
power of the court, preserved by section 97, and that it is the duty of the
court to invoke that power when the ends of justice so require.
[20] Mr. Slade, for Akira, argued that the High Court has jurisdiction to
award damages in respect of an injunction wrongly obtained only on one of
three bases: under section 64,in which case it is subject to the limit of
shs 2,000/-under section 91, which ho submitted would apply only to
perpetual injunctions; and where an undertaking has been given.
[21] Section 64(2) provides that in order an application under the section
bars a suit for compensation and this implies that a suit may otherwise be
brought. Mr. Slade submitted that such a suit could only be a suit founded
on an undertaking.
[22] With respect, this cannot be so. An undertaking is given to the court,
not to the other party, and a suit cannot be founded on such an undertaking
is dealt with in the same way as the breach of an undertaking. In England,
the breach of such an injunction (see the Supreme Court Practice, 1967,
notes under O. 29, r. 1and 0.45, r. 5), by proceedings for committal.
[23] In Kenya, the procedure is by attachment or committal, under Order
XXXIX, rule 2(3).
[24] Mr. Slade sought to support his argument by reference to various
English Cases and he drew our attention to the use by Cotton, L.J., in Smith
v. Day (1882) 21 Ch. D. 421 at page 430, of the expression "jurisdiction
founded on the undertaking".
[25] Mr. Khanna, in reply, submitted that jurisdiction could not be based on
the undertaking, as consent of parties can never confer jurisdiction.This
argument again is based, I think, on a mis¬-conception. The matter is not
one of consent. The court has power to enforce undertakings given to it and
to punish the breach of such undertakings: the power comes into being when
the undertaking is given, and it is only in this sense that the word
jurisdiction should be read. In this connection, in arguing that the reason
for an undertaking is not to confer jurisdiction, Nr Khanna submitted that
the reason for it is to avoid the necessity for a fresh action, a submission
which seems to me inconsistent with his main argument.
[26] In my opinion, the reference to suits in section 64(2) can only be to
suits in tort for abuse of civil process. I cannot think of any other cause
of action that could be invoked.
[27] I am reinforced in the opinion by an examination of the judgment in
Nanjappa Chettiar v Ganapathi Gouden (1912) I.L.R. 35 Mad.598 and the
commentaries of Mulla and Chitaley and Rao, which show that section 95 of
the Indian Code is so interpreted. I do not think this is necessarily
inconsistent with a remark of North, J., in Attorney-General v. Albany Hotel
Company (1896) 2 Ch. 696 to which Mr. Slade referred us.
[28] Speaking of undertakings in damages , the learned judge said “ it is
difficult to see how in the absence of such an undertaking, the defendant
could recover from the plaintiff the damages which wore really sustained by
him by reason of the improper order of the court".
[29] The action for abuse of civil process is only available where both
absence of reasonable and probable cause and malice can be proved and this
will obviously only be in the exceptional case.
[30] The position in Kenya would seem be that a defendant can recover
damages from the plaintiff in respect of a temporary injunction wrongly
granted¬
(a) on a broach of any term contained in an order
(b) made under Order XXXIX, rule 2(2), and enforceable under rule 2(3)
summarily, up to a maximum 0f shs, 2 ,000 under section 641
(c) under section 91, where a decree has issued and has been subsequently
varied or reversed; or
(d) in a suit brought for abuse of civil process.
[31] The question is, whether the high court may, and should, and invoke its
inherent power so as to award damages which could not be awarded in any of
those ways.
[32] In my view, it cannot. The inherent power could only be invoked in the
proceedings in which the injunction was discharged, but that is precisely
the situation for which section 64 provides.
[33] In providing that the court may award compensation not exceeding 2, OOO,
the statute is, in effect, saying that the court shall not in such
proceedings award more than shs. 2, 000.
[34] The inherent power cannot be invoked so as to defeat the express
provisions of a statute.
[35] Mr. Khanna, in the course of his argument suggested that section 64
only applied to an application expressly brought under that section and
could not limit the power of the court to grant an application invoking the
inherent power of the court. With respect, I cannot accept that proposition.
I think section 64 governs all interlocutory applications made to the court
for damages for injury suffered through the improper grant of a temporary
injunction. An application should properly be headed with a reference to the
section, but it applies whether or not it is so cited.
[36] It follows that in my opinion the application for an order for an
enquiry into damages in the form in which it was presented could not
properly have boon granted and therefore that this appeal must fail.
[37] The learned judge gave three reasons for refusing to order an enquiry.
First, he said that Mayers had "brought these costs upon himself by removing
the cattle as he did and could at any time have avoided further costs by
returning the cattle to Akira Ranch”.
[38] With respect, I think the first part of this proposition would have
justified standing the application over until the hearing of the suit rather
than dismissing it, because it seems to go to the merits of the suit.
[39] As regards the second part, Mr. Khanna complained that the cattle could
not lawfully have been returned, owing to foot-and-mouth regulations and in
any case, considerable cost would have been involved. Secondly, the learned
judge said that there had been inordinate delay in prosecuting the
application.Here, Mr. Khanna complained that the delay had not been the
fault of the appellants.
[40] He alleged that it had been partly the inevitable consequence of the
agreement of the parties to give priority to an application for the striking
out of the other plaintiff company and partly to delays in the court
itself.I must say that I find the delay disgraceful and inexplicable.
[41] This was a simple little matter of great urgency, yet it took over
fifteen months before it was decided. I can see no reason why it needed to
await the outcome of the other application nor do I see why it need
necessarily have been taken by the same judge.
[42] There is, however, in my opinion, not sufficient material before us to
enable us to apportion the blame and certainly not enough to justify our
saying that the learned judge was wrong, when he knows, as we do not, the
causes of delay in the High Court.
[43] Thirdly, the learned judge gave as a reason for dismissing the
application that it had not formally been contained in the notice of motion.
On this, I am inclined to agree with Mr. Khanna that it was not a good
reason.
[44] Mr. Slade argued that had it been included in the formal application,
Akira would have been prepared for it and could have produced evidence as to
the damages. The time for such evidence, however, was after an inquiry had
been ordered and, in any case, an adjournment could, if necessary, have been
granted on terms. There is one other matter that I would mention.
[45] Mr. Slade, in the course of his argument, submitted that decisions of
the English courts given prior to 1898 on the interpretation of the Common
Law are binding on this Court and not merely persuasive.
[46] With respect, I cannot agree. There have been cases, where the English
courts after that date have held that earlier decisions were wrong.
[47] I think it would be quite absurd if we were to be bound by decisions of
English courts which we think wrong and which have, in England been held
wrong, or which may in the future be held wrong there.
[48] In my opinion, we should treat the pre-1898 English decisions on the
Common Law with the highest respect, but I think we have the power to depart
from any such decision if we are convinced that it was wrong and that there
is no reason of judicial policy for continuing to follow it.
[49] I have referred briefly to these matters, but I would base my decision
on my belief that the enquiry, as sought by the appellants, could not
properly have been granted. I would dismiss the appeal with costs and a
certificate for two advocates.
MUSTAFA, J.A.
[50] I have had the advantage of reading the judgment prepared by Spry, V.-P.
I am in complete agreement with his reasoning and conclusion and concur in
the order proposed by him.
DUFFUS, P,
[51] I have read and entirely agree with the judgment of the learned
Vice-President and as Mustafa, JA also agrees, the appeal is dismissed with
costs and with a certificate for two advocates. |
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