Cosmas Mulenga v Bright Jangazya (2023/HP/1638) [2024] ZMHC 137 (10 July 2024)

IN THE HIGH COURT FOR ZAMBIA 2023/HP/1638 AT THE PRINCIPAL REGISTRY AT LUSAKA (Civil Jurisdiction) BETWEEN: COSMAS MULENGA AND BRIGHT JANGAZYA PLAINTIFF DEFENDANT BEFORE THE HONOURABLE LADY JUSTICE P. K. YANGAILO, IN CHAMBERS, ON THE 10TH DAY OF JULY, 2024. For the Plaintiff: Ms. M Phiri - Messrs. Makebi Zulu For the Defendant: Mr. B. J. Mulenga - Messrs. Barnaby Advocates. Chitundu & Khunga Advocates. RULING CASES REFERRED TO: 1. Hillary Bernard Mukosa 11 Michael Ronaldson (1993) S. J. 2 5 (S. C.); 2. Shell & B. P. Zambia Limited 11 Conidaris and Others (1975) Z. R. 174 (S. C.); and 3. American Cyanamid 11 Ethicon Limited (1975) AC 396. I LEGISLATION AND OTHER MATERIALS REFFERED TO: 1. The High Court Act, Chapter 27, Volume 3 of the Laws a/Zambia; and 2. The Law Association of Zambia General Conditions of Sale, 2018. 1. INTRODUCTION Rl IP age 1. 1 The Record herein was re-allocated to this Court on 15th March, 2024. A perusal of the Record revealed that there was an Application for an Order of Interim Injunction, made by the Plaintiff on 18th September, 2023. On 19th September, 2023, Justice T. Katanekwa granted the Plaintiff an Ex Parte Order of Interim Injunctions, pending Inter Partes hearing. 1.2 The Record further revealed that the Inter Partes hearing never took place. Accordingly, I called the Parties for a Status Conference on 3rd June, 2024, to ascertain the status and chart the way forward. On the return date, the Parties confirmed that the Application was never heard Inter Partes and Defendant requested for time to respond to the Application. I directed ·the Parties to file their respective Affidavits in Opposition and Reply within a specified time frame. The Parties then agreed for the Court to proceed to render its Ruling based on the documents on the Record. 1.3 At the time of writing this Ruling, the Parties had not complied with the Court's directives. Accordingly, this Ruling is in respect the Plaintiff's unopposed Application for an Order of Interim Injunction, made pursuant to Order XXVII, Rule 4 of The High Court Rulesl. 2. BACKGROUND R2 IP age 2 .1 The background to this matter, as gleaned from the pleadings, is that the Plaintiff commenced this action on 18th September, 2023, for the purpose of rescinding three contracts of sale relating to Stand No. 1274, Chelston, Lusaka ("Subject Property"). These contracts of sale were entered into by the Plaintiff and Defendant, in respect of the Subject Property. The Plaintiff alleges that he borrowed money from the Defendant on three occasions and on each occasion the Defendant drafted a contract of sale in respect of the Subject Property, which the Plaintiff believed to be a loan agreement. It is these contracts of sale that the Plaintiff has assailed and wants them rescinded. 2.2 In reaction to the suit, the Defendant entered Appearance and settled his Defence and Counter-Claim on 27th September, 2023, alleging that that the Plaintiff freely and voluntarily sold the Subject Property to the Defendant, and has received the full purchase price. 2.3 It is against this background that the Plaintiff applied for an Ex Parte Order of Interim Injunction, restraining the Defendant or his agents or servants from entering, evicting the Plaintiff from the Subject Property, and/ or changing ownership of the Subject Property. 3. AFFIDAVIT EVIDENCE R3 IP age 3.1 The gist of the Plaintiffs Affidavit evidence in support of the Summons for an Order of Interim Injunction is that the Defendant is trying to pass off loan agreements as contracts of sale of the Subject Property, which is held on title by the Plaintiff. The Plaintiff avers that on various dates, he borrowed from the Defendant sums of money in the amounts of K30,000.00 and K40,000.00, which prompted the Defendant to draft contracts of sale that he purported to be loan agreements, in respect of the Subject Property, showing the purchase price of K37,500.00 and K46,850.00. 3.2 It is further averred that the Defendant drafted a third contract of sale in respect of the Subject Property, with a purchase price of K230,000.00 and made representations to the Plaintiff that the documents presented to him were not intended to convey land, thus inducing the Plaintiff to complete the said contracts. 3.3 It is also averred that between September, 2022 and January, 2023, the Plaintiff paid back the Defendant equal sums of K30,000.00, bringing the total amount paid to the Defendant to a tune of K90,000.00. The Plaintiff avowed that despite this payment, the Defendant registered a Caveat on the Subject property and all attempts to resolve the issue with the Defend ant have not yielded any positive result, which has greatly inconvenienced the Plaintiff. The R4 IP age Plaintiff believes that if not restrained, the Defendant will proceed to change ownership of the Subject Property and evict the Plaintiff from the Subject Property. 4. SKELETON ARGUMENTS J 4.1 By brief Skeleton Arguments filed on behalf of the Plaintiff, Counsel for the Plaintiff submitted, inter alia, that it is trite law that an injunction can only be granted where the Applicant shows that they have a good arguable case. He placed reliance on the case of Hillary Bernard Mukosa v Michael Ronaldson1 , where the Supreme Court pronounced itself as follows: - "An injunction wtll be granted only to a Plaintiff who establishes that he has a good arguable claim to the right he seeks to protect." 4.2 Counsel further submitted that the Plaintiff seeks to protect his interest in the Subject Property, which if infringed can only be atoned for by a substantial amount of money. To fortify this submission, Counsel called in aid the case of Shell and BP Zambia Limited v Conidaris and Others2, which is instructive on the need for Applicants to show that they would suffer loss and irreparable damage if the injunction is not granted. 4.3 Counsel implored the Court to grant the Application sought so that the interest of justice is served. RSI Page / 5. CONSIDERATION AND DECISION OF THE COURT 5.1 I have had occasion to consider the Application for an Order of Interim Injunction by the Plaintiff, the Affidavit evidence and written submissions, together with list of authorities, for which I am grateful to Learned Counsel. 5.2 The Application is unopposed, but this does not entail that the Application prayed for by the Plaintiff will automatically be granted. I shall therefore consider assiduously the Affidavit in Support of the Application and Skeleton Arguments filed by the Plaintiff. It is only after proving the requisite elements for the grant of an Injunctions that the Application will be granted. 5.3 From the evidence presented before this Court, it can be seen that the Plaintiff is the title holder of the Subject Property as shown by exhibit marked "CM 1". It can further be seen that the Parties herein executed three contracts of sale in respect of the Subject Property in the amounts qf K37,500.00; K46,850.00; and K230,000.00. It is the said Subject Property that the Plaintiff wants preserved pending the hearing and determination of the substantive matter. The Plaintiff asserts that he borrowed various amounts of money from the Defendant and that the contracts of sale that he assails were drafted by the Defendant, and executed by the Plaintiff under the belief that they were loan agreements. R6 I Page 5.4 Therefore, of determination is whether the Plaintiff has achieved the threshold for the grant of an injunction sought pending the hearing and determination of the substantive matter herein. 5.5 Under The High Court Rulesi, this Court has jurisdiction to grant an injunction pending the hearing and determination of an action, upon application by either party to the action. This power is provided for under Order XXVII of The High Court Rules1• Where a party to an action is apprehensive that a property subject of a dispute, may be threatened by the other party, in my considered view, that .party has a right to seek a protective order of the Court to protect its interest in the property from threats. 5.6 The present Application was made pursuant to Order XXVII, Rule 4 of The High Court Rules1, which provides as follows: .- "In any suit for restraining the defendant from the committal of any breach of contract or other injury, and whether the same be accompanied by any claim for damages or not, it shall be lawful/or the plaintiff, at any time after the commencement of the suit, and whether before or after judgment, to apply to the Court or a Judge for an injunction to restrain the defendant from the repetition or the continuance of the breach of contract or wrongful act complained of, or the committal of any breach of contract or inJury of a like kind arising out of R7 IP age I the same contract, or relating to the same property or right, and such injunction may be granted by the Court or a Judge on such terms as to the duration of the injunction, keeping an account, giving security or otherwise, as to the Court or a Judge shall seem reas~nable andjust: Provided that any order for an injunction may be discharged, varl.ed or set aside by the Court or a Judge, on application made thereto by any party dissatisfied with such order." 5. 7 I must stress at the outset that an injunction is a remedy that should only be granted if the Applicant has a substantive cause of action. It is dependent upon there being a pre-existing cause of action against the Respondent arising out of an invasion, actual or threatened, of a legal or equitable right of the Applicant. 5.8 The test to be applied when considering whether an interim injunction should be granted remains that laid down by the House of Lords in the case of American Cyanamid Company vs. Ethicon Ltd3 from which the three basic principles of law and guidelines to be applied in interlocutory injunctions are summarised as follows: - 1. That there must be a serious action to be tried at the hearing; 2. That there is a clear right of relief and that the Applicant has a good arguable claim to the interest he seeks to protect; and ------ .. __ _ R8 f Page -----·-- ..... _ ---- - .. -- ----.. 3. That the Applicant would suffer in-eparable hann or injury that cannot be atoned for by payment of damages. 5. 9 In relation to the present case, the Plaintiff alleged that following his borrowing amounts of money from the Defendant, he executed three contracts of sale drafted by the Defendant, in respect of the Subject Property, under the belief that they were loan agreements. The Plaintiff placed before this Court proof supporting his assertions, in the form of his Certificate of Title and three contracts of sale in respect of the Subject Property. 5.10 I have had an opportunity to peruse the Defendant's Defence and Counter-Claim, where the Defendant asserts that the Parties herein entered into a sale agreement in respect of the Subject Property at a consideration of K230,000.00 and the Defendant settled the full purchase price, which the Plaintiff duly acknowledged receipt and surrendered the Original Certificate of Title to the Defendant. 5.11 From the evidence presented before this Court, it is clear that the Parties herein executed three contracts of sale, which are subject to The Law Association of Zambia General Conditions of Sale, 20182-. The genesis of the dispute are the purported contracts of sale and that can only be resolved through arbitration as provided for under Condition No. 27 of The Law Association of Zambia R9 f Page General Conditions of Sale, 2011P, which requires all disputes, controversies or claims arising from the contract of sale to be resolved by arbitration. I 5.12 For the foregoing reason, the Application for an Interim Injunction is denied and the Ex Parle Order of Injunction granted on 19th September, 2023, is hereby discharged. 5.13 Since this matter is improperly before this Court, it is hereby dismissed. 5.14 Each Party shall bear its own costs. 5.15 Leave to appeal is granted. SIGNED, SEALED AND DELIVERED AT LUSAKA, ON 10TH DAY OF JULY, 2024. P. K. Y GAILO HIGH COURT JUDGE R10 IP age