IN THE HIGH COURT OF MALAWI
LILONGWE DISTRICT REGISTRY
MISC. CIVIL CASE NO. 02 OF 2008
BETWEEN
THE STATE
AND
INSPECTOR GENERAL OF POLICE
Exparte Jodder Reggie Kanjere
CORAM : CHOMBO, J.
: Mr. Makono for the Applicant
: Mr. Liabunya for the State
: Mr. Njirayafa, Court Interpreter
RULING
The application before me is a prayer by Mr. Kanjere to restrain the Interpol
Department from continuing to impound motor vehicle registration No. NU 2412,
Toyota Raider. The brief facts of the application are that the applicant bought the
said vehicle from a Mr. Charles Mbale who was accompanied by a South African
national. By the time he bought the vehicle the vehicle had already been cleared
by Interpol and locally registered. The vehicle is used for business and was
impounded on September 2007, depriving the business of its use.
The application first came before Kamanga, J. who, apart from ordering an inter-
parte application, ordered that the respondent continue impounding the motor
vehicle. The applicant therefore prays for the court to make an Order that the
1
vehicle in question be released to the applicant and in so doing any deterioration
of the said vehicle for non-use will also be mitigated.
The State, did not file any affidavits and skeletal arguments. Counsel for the State
submitted however that he would stick to the arguments contained in the
affidavits and skeletal arguments on the court file when the case first appeared
before Chinangwa, J. During the said hearing the Attorney General raised
objections on the basis of law which the applicant agreed with. The objection was
on the ground that no injunction can be granted against the State except in
judicial review proceedings. The applicant, in compliance with Order 53 of the
Rules of the Supreme Court entered a notice of discontinuance. Counsel for the
State was thereof of the view that until that is complied with the applicant can not
proceed on the original application. In response the applicant demonstrated that
an application for leave for judicial review had been filed with the court thereby
complying with the requirement of the law. According to the order made by
Kamanga, J. the motor vehicle was not to be released to either the applicant or
the purported owner in South Africa until the inter-parte application is heard.
The evidence on record indicates that the said vehicle was bought by the applicant
in December 2002. Then the seller, a Mr. Mbale and a South African national
brought the vehicle to Malawi in January or February 2003. And, before it was
finally handed over to the applicant the same was cleared by the same Interpol
Department in Malawi. Then there is a funny twist to the events, only in May
2003 did Police in South Africa receive a report of the same vehicle having been
stolen. What I can not comprehend is how that the motor vehicle was brought to
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Malawi in January or February and that the report of the theft was only made in
May 2003; 6 months after the same was purportedly stolen.
The questions that I asked myself were (a) is it possible for an asset as big as a
motor vehicle to get stolen and the owner not know that it is stolen? (b) or is it
possible that a car would be stolen and the owner would have good reasons for
not reporting the same to Police immediately after the theft? (c) did the
purported seller thereof have anything to do with the purported theft and only
reported the same to police after the vehicle was safely disposed off? (d) if,
indeed the vehicle was properly cleared by the same Interpol Department, what
would prevent the same Department from providing the applicant with the
documents of clearance thereof? Surely the applicant was entitled to access the
documents that had been issued by the Interpol Department that cleared the
vehicle. The applicant has submitted that he asked for the said documents but he
has not been furnished with the same; and no justification has been provided. If
indeed the ownership of the said vehicle lies in the purported complainant in
South Africa then that owner must clearly explain the otherwise strange
circumstances referred to herein earlier. Having said this, I am mindful of the fact
that a matter like this can not be determined on affidavit evidence alone.
However, the granting of an injunction, as laid down in the celebrated case of
American Cynamid Co –v- Ethcon Limited1 is based on a balance of convenience,
urgency and equity. I find therefore that on the balance of convenience, it is
equitable to grant the applicant’s prayer that the Inspector General of Police be
restrained from continuing with the impounding of the said vehicle. The said
1 [1975] AC 396
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vehicle must therefore be released to the use of the applicant until there is
competent proper justification as to how the theft of the said vehicle was only
reported 6 months after its theft and after it had been cleared by Interpol in
Malawi.
Having come to this conclusion, it must be pointed out that the court was not
persuaded by the point raised by the applicant that the interests of the citizen
should be protected above the interests of the law. The rights of citizens shall
only be protected where the law has not been transgressed;
MADE in Chambers this 8th August 2008.
E.J. Chombo
JUDGE
