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Law And Business - How Courts Defeat Justice by Delaying Their Rulings
(AllAfrica.com English Via Thomson Dialog NewsEdge) Nairobi, Aug 29, 2006 (The East African Standard/All Africa Global Media via COMTEX) --Justice delayed is justice denied. This is a legal principle that crops up each time courts of law are seen to have taken unduly long in passing verdicts.
Tejinder Birdi, the proprietor of La Belle School of Hairdressing and Beauty Therapy, called The Standard last week to break good news - the courts had finally set a hearing date for her application filed in 2005.
She filed an application on May 19, 2005, seeking to have the director of Fidelity Commercial Bank Limited and a receiver, Mr Ismail Mawji, punished for contempt of court.
She wants them committed to civil jail for six months for "acting in disobedience by not obeying the court order delivered on June 10, 2004".
The High Court has now fixed November 6 for the hearing of her application.
The director of Fidelity Commercial Bank and Mawji are alleged to have sent their agents to her matrimonial home in Parklands in March 2005 in connection with recovery of a loan advanced to La Belle International Ltd where she is managing director.
According to court papers, their move was in total disregard of a court order stopping recovery of a loan Fidelity Commercial Bank advanced La Belle International Ltd in July 1997.
Her matrimonial home at Parklands' Mpaka court is the collateral security for the loan. Birdi says a visit by agents of Fidelity Commercial Bank to her home, and who allegedly took pictures of the maisonette, caused her disturbance.
In April last year, High Court Judge Prof Onesmus Mutungi gave orders barring the bank from realising the security until an appeal Birdi has filed was heard and determined.
Mutungi's order effectively halted any move by the bank to reap the fruits of a favourable ruling it obtained in July 2003.
The July 17, 2003 ruling, delivered by High Court Judge, Justice Joseph Nyamu, said the bank was free to recover its money from La Belle International Ltd through sale of Birdi's home.
The judge held that Birdi and La Belle International Ltd had failed to demonstrate that they would suffer any irreparable loss if the house at Parklands was sold.
He noted that Birdi had on her own tried to find a buyer for the house to pay off the bank.
The judge ruled she would be compensated in damages if it later turned out that the bank ought not to have sold the house.
Birdi and her firm had moved the court under a certificate of urgency claiming that the bank had threatened to re-impose the purported receivership over La Belle International Ltd and sell her charged property.
The bank and a receiver had in January, 2002 allegedly unlawfully taken over the operations of La Belle International Ltd, ejected Birdi and the firm's other director, the late Davinder Singh Birdi.
Mawji is also alleged to have taken over the operations of the company and ejected an independent purchaser who was at the premises to sign an agreement of sale of part of the business.
The bank was later to obtain orders requiring Birdi to vacate the house to facilitate the sale of the charged property by private treaty.
Justice Mutungi issued the order after Birdi and her firm failed to defend the suit.
The defendants failed to file a defence or enter appearance despite being served with the suit papers.
The court allowed the bank's plea after satisfying itself that there was no dispute as to the loan advanced, the contents of the charge document and the consent to the sale of the house by private treaty.
Justice Mutungi was later to halt the realisation of the fruits of these two rulings, saying that Birdi's intended appeal would be an exercise in futility if this were not done.
In his ruling, the judge took issue with the bank's lawyer, Mr Rustam Hira for his insensitivity to the plight of the widow.
The lawyer had urged the court not to be sympathetic to the widow allegedly because she ought to have known better on how to handle the loan advanced.
Birdi is to enjoy Mutungi's stay of execution orders pending the hearing and determination of the appeal whose hearing date is yet to be fixed. The notice of appeal was filed on July 21, 2003.
The appeal against the ruling of July 17, 2003 is based on 14 grounds, among them, that Justice Nyamu erred in dismissing her application for restraining orders against the bank.
He allegedly failed to allow Birdi's application for an injunction to go to full trial.
The judge further allegedly failed to appreciate that, on the face of the suit, the bank's calculation of interest rates charged on the loan were at variance with Interest Rates Advisory Centre workings.
It is instructive to note that Birdi has not moved the Court of Appeal on the ruling of Justice Mutungi requiring her to vacate the suit property.
The bank too has not kept mum over the developments. It has filed an application seeking the interpretation of Mutungi's order.
The application is pending for hearing before Mutungi on a date yet to be set by the High Court registry.
Earlier attempts to have it heard were met by a tussle on which of the two applications - contempt and interpretation - should be heard first. Hearing of the contempt application appears to have carried the day.
The genesis of this seemingly unending battle is a Sh10 million loan advanced to La Belle International Ltd in July 1997 for the purchase of a house, then valued at Sh12.5 million.
The bank split the loan into two, with Sh1.25 million being paid towards an overdraft Birdi had at Giro Bank and the balance towards purchase of the house.
Birdi says in court papers that she had by June 28, 2002 paid the bank Sh11,365,453.50. The bank now claims from La Belle International Ltd over Sh22 million.
She is disputing the final balance claiming that the bank has grossly inflated and exaggerated her company's indebtedness.
It will be interesting to watch future developments in these multiple applications arising from the same transaction.
The chief magistrate's court has heard and determined two criminal cases in which Birdi has complained against the bank's managing director, Mr Sultan Khimji, for alleged conspiracy to murder her and conspiracy to defeat the course of justice by allegedly bribing witnesses not to testify in the case against him.
The most likely scenario now is that the dispute shall remain undetermined in our courts for a long time considering that the court of appeal is yet to set a date for Birdi's appeal.
Copyright 2006 The East African Standard. Distributed by AllAfrica Global Media (allAfrica.com).
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