Forbes Kapembwa v Indeco Estates Development Company Limited and Anor (2001/HL/42) [2002] ZMHC 15 (30 April 2002)

IN THE HIGH COURT FOR ZAMBIA HOLDEN AT LIVINGSTONE (Civil Jurisdiction) 2001/HL/42 BETWEEN: FORBES KAPEMBWA PLAINTIFF AND INDECO ESTATES DEVELOPMENT COMPANY LIMITED 1ST DEFENDANT AND ELIZABETH KALUBA KA YOYA 2ND DEFENDANT Before the Honourable Mr Justice M S Mwanamwambwa in Chambers on the 30th day of April 2002. For the Plaintiff: IE Suba (Ms) - Kuta Chambers For the 1st Defendant: Mr F S Chmmga - Silweya and Company For the 2nd Defendant: Mr J Kapepe - Lisulo and Company R u L I N G Cases refeffed to: 1. 2. 3. 4. 5. 6. SHELL AND BP (Z) LIMITED V CANIDARJS - (1975) Z. R. 174 MWENDELEMA V ZAMBIA RAILWAYS BOARD (1978) Z. R. 65 TURNKEY PROPERTIES V LUSAKA WEST DEVELOPMENT LIMITED {l 984) Z. R. 85 ZIMCO PROPERTlES LIMJTED V LADCO LIMITED 0988/89) Z. R. 92 PRESTON V LUCK 27 CH. D. 497 ATKINS COURT FORMS (3RD EDITION) VOLUME 22, 1991 lSSUE Pages 60 - 63 This is an application by the Plaintiff for an interlocutory injunction against the 1st and 2nd Defendants in relation to Flat No. 19 Nottie Broadie, Livingstone, as per claim (iv) on the Writ of Summons. The full endorsement on the writ of summons reads as follows : R2 "The Plaintiffs claim is for , J) A declaratory Order to the effect that Plaintiff is entitled to purchase Flat No 19, Nottie Broadie, Livingstone having been the sitting tenant at the time that the property became due for sale in accordance with government policy. ii) A declaration that the purported sale of Flat No 19, N ottie Broadie, Livingstone to the 2nd Defendant herein is null and void ab initio and of no consequence whatsoever in law. iii) An interlocutory Injunction restraining the 1st Defendant from interfering and evicting the Plaintiff therefrom and the 2nd Defendant from any further dealings in the land including transfering title to the 2nd Defendant either directly or through its/their agents or servants. iv) Specific perfonnance in relation to Flat No. 19 OR In the alternative specific performance in relation to Flat No 13, Nottie Broad, Livingstone provided that the alternative Flat is unencumbe1·ed. v) vi) vii) Consequential expenses. Costs of this action. Any other relief(s) that the Honourable Court may deem just. On behalf of the plaintiff Miss Suba submitted that since the Plaintiff was still in occupation of Flat No. 19, the balance of convenience was in his favour. That having paid a deposit to purchase Flat No 13, subsequent to an offer by the 1st Defendant to purchase Flat No. 19, the Plaintiff is likely to suffer irreparable damage if he is to be evicted from flat No 19 as the alternative Flat No. 13 offered to him is not available, it having been occupied by somebody else who placed an injunction on it. She further submitted that the Plaintiff was entitled at law to buy Flat 19 offered to him. She then cited the following cases:- R3 Shell and BP(Z) Limited V Canidaris Zimco Prope11ies Limited V Lapco Limited Mukoba and D. Kombe V Livingstone City Cotmcil & ZANACO Limited J. M. Chica V K. Hambulo C. Phiri and E. C. Mbewe V ZANACO a. b. c. d. e. That these latest authorities by the Supreme Court were very specific on the issue of balance of convenience based on possession and the fact of money having exchanged hands by way of transfer of Title or likely transfer of Title. On behalf of the 1st Defend ant, Mr Chuunga submitted that the Plaintiff has not made due regard to the essence of provisional offer, its subsequent cancellation and the conduct of parties thereafter. That in the present case, the Plaintiff was given a provisional offer for purchase of Flat 19 but this was nullified and thereafter, the Plaintiff was given another offer for the purchase of Flat 13, which he accepted as shown by exhibit "FK3" to his supporting affidavit. That on 29th March 2001, he followed his acceptance of the subsequent offer by paying the 10% deposit for flat 13. That the Plaintiff is trying to fall on a right and/or relationship that had been nullified which nullification he accepted and acted upon. Therefore he has no right over Flat 19 which can be enforced by an injunction. That his mere occupation of Flat 1 9, which was not legalised is not a basis for a grant of an injunction. He further relied on paragraphs 7 and 8 of the 1st Defendant's opposing affidavit which state that the Plaintiff obtained the cancelled offer over Flat 19, as result of his misrepresentation to the 1st Defendant that the 2nd Defendant no longer had an interest in Flat 1 9. On behalf of the 2nd Defendant, Mr Kapepe submitted that although the Plaintiff was provisionally offered Flat No 19, there is no evidence that he accepted the offer. Hence there is R4 no contract of sale between him and the 1st Defendant over Flat 19. That the evidence on record shows that the Plaintiff was offered Flat 13 on 06.03.2001, accepted the offer on 13.03.2001 and then paid a deposit of I 0% on the same flat. Therefore, the Contract of Sale between him and the 1 st Defendant is over Flat 13 and not Flat 19. That the contract of sale over Flat 19 is between the IstDefendant and the 2nd Defendant, who paid K8,750,000 towards the purchase price. Therefore, the Plaintiff is not entitled to an injunction over Flat 19. He further submitted that although the Court should not be called to decide finally on the .rights of the parties, for the Plaintiff to be entitled to an injunction, the Court should be satisified r that there is a serious issue to be tried at the hearing. That the Plaintiff must show that there is a possibility that bis main claim will succeed. He cited PREST ON V LUCK (5). That in the case at hand there is no serious question to be tried at trial since the question is infact answered by his supporting affidavit and the two Defendants' opposing affidavits, which show that the Plaintiff contracted with the 1st Defendant, to purchase Flat 13 and that the 2nd Defendant contracted with the 1st Defendant, to purchase Flat 19. That accord inly, the Plaintiff is not entitled to an injunction. On the authorities cited by the Plaintiff, he argued that they bear no relevance to this case, as they mainly related to irreparable injury or balance of convenience. He further submitted that the Plaintiff will not suffer irreparable injury in that he contracted to buy Flat 13 . That to the Contrary it is the 2nd Defendant who will suffer irreparable injury in that she contracted to buy Flat 19. Further that the balance of convenience equally tilts towards the 2nd Defendarit in that she has a legitimate claim over Flat I 9, through the purchase payment she made for it. An injunction is a discretionary remedy. A party is not entitled to it as of right. However discretion in this respect should be exercised judiciously. (See Atkin's Court Forms (6). There are two main principles on which Courts act in deciding whether or not to grant an injunction. RS First is the clear right to relief. A party seeking an injunction must establish clearly that he is entitled to the right to which he seeks to protect by an injunction. " ............... the modern tendency is ................. only to grant interlocutory injunction where the right to relief is clear". See Shell and BP Zambia Limi ted v Canidaris (1) He must show that he stands a chance of succeeding in the main action and therefore needs an injuction to preserve the status quo until determination of the main action. On this issue Lord Diplock once observed: "My Lords, when an application for an interlocutory injunction to restrain a Defendant from doing acts alleged to be in violation of the Plaintiffs legal right is made on contested facts, the decision whether or not an interlocutory injunction has to be taken at a time when exwhypothesi the existence of the right or the violation of it, or both, is uncertain and will remain uncertain until final judgment is given in the action. It was to mitigate the risk of injustice to the Plaintiff during the period before this uncertainity could be resolved that the practice arose of granting him relief by way of interlocutory injunction; ......... but the Plaintiffs need for such protection must be weighed against the corresponding need of the Defendant to be protected against injury resulting from his having been prevented from exercising his own legal right for which he could not be adequately compensanted under the Plaintiff's undertaking in damages if the uncertainity were resolved in the Defendant's favour at trial. The court must weigh one need against another and detrmine where the balance of convenience lies". (As quoted in Mwendalema v Zambia Railways BoaJd (2). Second is irreparable injury. "The plaintiff must also as a rule be able to show that an injunction till the hearing is necessary to protect him against irreparable injury; mere inconvenience is not enough. Irreparable injury means injury which is substantial and can never be adequately remedied or atoned for by damages, not injury which cannot possibly be repaired" (See Shell and BP Limited v Canidaris (ibid). R6 In TURNKEY PROPERTIES V LUSAKA WEST DEVELOPMENT LIMITED (3), Ngulube, DCJ. Precisely summarised these two principles in these words: "In order to succeed, the Appellant should have demonstrated that, not only was their right to the relief sought clear, but above all, the injunction is necessary to protect them from irreparable injury". r In the instant case, the right the Plaintiff is seeking to protect by an injunction is to continue to occupy Flat 19, pending determination of the following claims:- (a) (b) For a declaratory order that he is entitled to purchase Flat 19, A declaration that the purported sale of Flat 1 9 to the 2nd Defendant is null and void abinitio. (c) Specific performance in relation to Flat 19 OR in the alternative, specific performance in relation to Flat 13 provided that it is unincumbered. With no intention of determining that main issues to be resolved at trial, I agree with Mr Chuunga and Mr Kapepe that on Flat 19, there is no serious issue to be determine because the affidavit evidence show that the Plaintiff contracted with the 1st Defendant, to purchase Flat 13 and not Flat 19. Accordingly, I am of the view that he has not established a clear right to the relief sought. So I find in favour of the 1st and 2nd Defendants on the first leg. On the second leg, TURNKEY PROP ERT IES V LUSAKA WEST DEV. CO. LTD (3) is very clear. The Supreme Court observed: "Damages are the Universal remedy for breaches of contract and are practically always an alternative remedy to a claim for specific peformance even of a contract of sale of land". In the case at hand, the Plaintiff is claiming for a declaratory Order that he is entitled to purchase Flat 1 9 from the 1st Defendant and for "Specific performance in relation to Flat 19". In essence R7 he is saying that there is a contract of sale of Flat 19 between him and the I st Defendant for ·which he is seeking specific performance. In the event he fails to obtain specific performance of such a contract, damages would be an adequate remedy within the principle quoted above. Therefore, I am of the view that he is not entitled to an injunction. Accordingly I find in favour of the 1st and 2nd Defendants on the second leg too. ( In her submissions, Miss Suba dwelt on the balance of convenience based on possession of the Flat as the main issue, in the injunction. This very issue was dealt with by the Supreme Court in ZTMCO PROPERTIES LIMITED V LAPCO LTD (4). Gardner J. S. Observed: "Various authorities have been quoted before this Court relating to the balance Of convenience to the parties in the granting of an injunction. We must make it clear that the balance of convenience between the parties only arises if the harm done will be irreparable and damages will not suffice to recompense the Plaintiff for any harm which may be suffered as a result of the actions of the defendant which it is sought to restrain. It is therefore inappropriate in this case to discuss the question of balance of convenience." The balance of convenience is not the main issue in this case. The main issue is irreparable injury. From the quotation above it is quite clear to me that the balance of convenience is connected to irreparable injury. If there is no irreparable injury, then the balance of convenience is not an issue. If there is irreparable injury, then the balance of convenience arises for consideration. In the case at hand, I have so far found that there is no ineparable injury and hence on the authority of the case of Zimco properties Limited case, the balance of convenience does not arise and is not an issue. Further, it is not the law that once a party has possesion of property, then automatically the balance of convenience tilts in his favour. The issue depends on contending rights. In the . . . words of Lord Diploc as quoted above: R8 " ................ but the plaintiffs need for such prtotection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercing his own legal right ............... if the uncertainity were resolved in favour of the Defendant at trial. The Court must weigh one need against another and determine where the balance of convenience lies." Finally it is my view that this is not a fit and proper case for an injunction. Accordingly, I discharge the ex~parte injunction issues herein on 03.09.01 with costs to the 1st and 2nd Defendants, to be agreed upon, in default to be taxed. Leave to appeal to the Supreme Court is hereby granted. DELIVERED IN CHAMBERS THIS 30TH DAY OF APRIL 2002.